State v. Phillips
| Decision Date | 07 March 1977 |
| Docket Number | No. 58429,58429 |
| Citation | 343 So.2d 1047 |
| Parties | STATE of Louisiana v. Thomas Louis PHILLIPS. |
| Court | Louisiana Supreme Court |
Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Timothy W. Cerniglia, Asst. Dist. Atty., for plaintiff-appellee.
On the morning of October 8, 1974, Gary Eugene Solomon was driving his car to school in the City of New Orleans. As he proceeded he observed a blue flashing light on a vehicle behind him. Thinking the police were trying to stop him, Solomon pulled over to the side of the street. The defendant Thomas Louis Phillips, driver of the following car, pretending to be a police officer, got out of the following car and demanded Solomon's license and registration papers. Defendant then searched Solomon's car, handcuffed him and put him in defendant's car.
With Solomon handcuffed in the car, Phillips drove around for some time. After a while he brought Solomon to a hotel room. Subsequently a $250,000 ransom demand was made on Solomon's father. The next day Phillips instructed the victim's father to go to a pay phone at a designated drugstore, where Phillips, with the victim in custody, called him from a gas station pay phone. As Phillips was finishing the call, he was captured by F.B.I. agents, and the victim was freed.
An indictment returned by the Orleans Parish Grand Jury charged that Phillips 'did forcibly seize and carry off the person of one Gary N. Solomon with the intent to force some other person to give up $250,000.00 in order to secure the release of the said Gary N. Solomon.' The indictment was based upon Article 44 of the Criminal Code relating to aggravated kidnapping.
After a defense plea of not guilty and not guilty by reason of insanity, trial by a jury of twelve resulted in a verdict of 'guilty.' Phillips was sentenced to serve the remainder of his natural life in the custody of the Department of Correction with credit for time served. Nine of the eighteen assignments of error reserved are urged on this appeal. Defendant is an indigent represented by counsel appointed by the Court.
In a supplemental application for bill of particulars, defense counsel sought copies of all statements made by prosecution witnesses. The Court is informed by the defense brief that the application was particularly directed to statements which may have been made by the victim and his father. The State answered that the defense was not entitled to this information, and the trial judge found the answer to be satisfactory. The ruling is assigned as error.
It is argued in support of this assignment of error that the sixth amendment to the United States Constitution guarantees an accused the right to cross-examine and confront witnesses against him. Because defense counsel was unable to discover the statements of these witnesses, it is contended that he was unable to adequately prepare a defense. As a result, the defense was unfairly surprised, and defendant was effectively denied his sixth amendment right.
No special need is shown for the production of the statements, nor does the record indicate that the statements are exculpatory, or, in fact, that such statements exist. And we feel that in some instances the preliminary hearing provides an opportunity for the defense to interrogate the State's witnesses and thereby avoid surprise. In addition, the defendant has an opportunity to conduct an independent investigation and to interview the witnesses.
This Court has taken the position, shared by a substantial majority of jurisdictions, that pretrial disclosure of a potential witness' statement should not be granted even upon a showing of particular need. Decisions on pretrial discovery generally support this proposition. State v. Huizar, 332 So.2d 449 (La.1976); State v. Redfud, 325 So.2d 595 (La.1976); State v. Kado, 300 So.2d 461 (La.1974); State v. Hunter, 250 La. 295, 195 So.2d 273 (1967).
The confrontation clause of the sixth amendment was designed to advance the practical concern for the accuracy of the truth determining process in criminal trials. Its object was to guarantee that the fact-finder has adequate opportunity to assess the credibility of witnesses. It is the right of cross-examination which the amendment aims to assure. It is face to face confrontation at trial which is involved in this guarantee. Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). There is, therefore, no deprivation of this right by the denial of a pretrial disclosure of statements of the prosecution's witnesses. See State v. Ivey, 442 S.W.2d 506 (Mo.1969); cf. Winkle v. State, 488 S.W.2d 798 (Tex.Ct.App.1972).
In a pretrial petition based on Articles 739--40 of the Code of Criminal Procedure 1 the defense requested the issuance of subpoenas and writs of habeas corpus ad testificandum for eight individuals incarcerated in federal prisons in Texas, Missouri, New Mexico, Georgia and Oklahoma. The petition alleged only that these prospective witnesses would be called to testify and their testimony would be relevant and material.
A motion by the State to deny defendant's request set forth that defendant's petition failed to show that the testimony of these witnesses would be relevant and material; that the request was frivolous and was intended merely to delay the trial on the merits; and that the expense for transporting the prisoners was estimated by the U.S. Marshal to be $4,000.
A hearing was held in chambers on defendant's petition out of the presence of the State's attorneys. The evidence adduced revealed that the prospective witnesses, most of whom were former inmates with defendant while he was incarcerated in the House of Detention, would testify to defendant's irrational and unexplainable action in prison. According to defense counsel, this evidence would bolster defendant's plea of 'not guilty and not guilty by reason of insanity.'
Thereafter when the Court rendered its decision sustaining the State's motion, the trial judge filed the transcript of the hearing testimony into the record of this case. The transcript contained his reasons for denying the subpoenas. In addition, he adopted the State's brief as part of his reasons. He was of the opinion that none of defendant's fifth amendment rights were violated, expressing the opinion that the relevancy of fifth amendment rights was 'somewhat questionable.' The defense objected to this ruling and applied to this Court for review. The application was denied, the Court being of the opinion that See State v. Phillips, La., 322 So.2d 769 denial dated November 11, 1975.
In brief to this Court counsel for defendant contends that Articles 739 and 740 of the Code of Criminal Procedure, and the comments thereto, specifically provide for a 'private inquiry' by the Court into the facts surrounding the requested witnesses; therefore, filing the transcript of that inquiry into the record violates the privacy contemplated by those articles. This is so, according to the argument, for by filing the transcript into the record the prosecution is apprised of what transpired at the hearing defeating the primary purpose of Articles 739 and 740, which is designed to protect the defendant against disclosure of his defense to the State prior to trial.
A consideration of Articles 739 and 740, and the comments, reveals that the 'private inquiry' prescribed 'is intended to give the judge Full discretion in ordering or refusing to order the attendance of witnesses from other partishes after reviewing the facts of the case.' (emphasis added). Comments, Art. 740. It is also evident that the trial judge should file his reasons for refusal of the subpoenas to permit appellate review. Id.
Thus, from this record, it is apparent that the procedure prescribed in holding the 'private inquiry' and the action of the trial judge in filing his reasons in the record is in keeping with the requirements of Articles 739 and 740. Only the filing of the testimony obtained at the 'private inquiry' is subject to question under the defense contention that this action has the effect of disclosing the defendant's defense to the State prior to trial.
The question to be answered before this conviction is reversed is whether the filing of the transcript into the record is such an error that it has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right. La.Code Crim.Proc. Art. 921. In our view the error does not warrant reversal.
The requirement of Article 740 that the judge shall state his reasons in writing for not issuing the subpoenas and that the written reasons shall become part of the record conceivably presents some difficulty in execution. Especially is this apparent when those reasons, as in this case, must, in order to be adequate for appellate review, recite the substance of the testimony of the witnesses who are sought to be subpoenaed. How else can the judge's reasons serve as a basis for review on a determination that the witness is not 'indispensable to the trial or hearing,' or that the testimony of the witness is 'relevant, material, and not cumulative'?
A review of the defendant's testimony at the 'private inquiry' convinces the reader that the trial judge must have concluded that the testimony of the witnesses would be 'cumulative' and as such was not 'indispensable' to the trial on the issue of defendant's insanity at the time of the commission of the offense. Only the defendant's uncorroborated testimony was produced at the...
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State v. Touchet
...the confines of the trial judge's chambers, and then only for the purpose of creating some basis for appellate review. State v. Phillips, 343 So.2d 1047, 1052 (La.1977). The concerns behind the enactment of this statute that shields the reason the proposed testimony of a material witness is......
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State v. Goldston
...a face-to-face meeting between witness and defendant. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); State v. Phillips, 343 So.2d 1047 (La.1977). The right, however, is not absolute. State v. Ranker, 359 So.2d 129 (La.1978). It is subject to the power of courts to cond......
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