State v. O'Quinn

• Decision Date: 28 January 1977
• Docket Number: No. 57792,57792
• Citation: 342 So.2d 202
• Parties: STATE of Louisiana v. Oran O'QUINN and Charles LaFleur.
• Court: Louisiana Supreme Court

Page 202

342 So.2d 202

STATE of Louisiana v. Oran O'QUINN and Charles LaFleur.

No. 57792.

Supreme Court of Louisiana.

Jan. 28, 1977.

Rehearing Denied Feb. 25, 1977.

Joe A. Brame, Gary A. Book, Lake Charles, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., James L. Babin, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

Oran O'Quinn and Charles LaFleur were charged with theft of guns and knives of a value of more than $1020.00. After verdicts of guilty, each was sentenced to six years at hard labor.

Marshall LaFleur, the brother of Charles, testified for the State to the effect that he and the two defendants had entered the residence of Lamuel Oliver, had broken the glass front of a gun case, and had taken guns and other property from the unoccupied house. Other testimony showed that the three young men had tried to sell two of the guns to an uncle on the same night, and were seen in a wooded area the next morning close to the spot where the guns were later found by police.

Charles LaFleur took the stand, denied the theft, and explained his possession of the stolen property: Richard Hopkins, whom he had visited in the Oliver house, had told him the guns belonged to Hopkins, had borrowed the LaFleur car and had put the guns in the back seat. Charles LaFleur testified that the guns were hidden in the woods the next day because he, LaFleur, was on parole and would have been jailed if he had been found in possession of the weapons. The defense attempted to explain the younger brother's story of the theft as the result of a plea bargain.

Thirty-one bills of exception were reserved (this case was tried in 1973) and will be discussed as numbered in the record.

There is no error in Bill of Exception No. 1. Defendants object to the court's permitting the State to amend the bill of information to omit certain articles originally included as having been stolen by the defendants. The amendment did not change the grade of the offense, which was a violation of R.S. 14:67, but only reduced the total value of the items stolen from $1516.00 to $1020.00. 'Before the trial begins the court may order an indictment amended with respect to a defect of substance.' C.Cr.P. 487. There could have been no prejudice to the defendants by eliminating certain articles from those which the defendants were charged with stealing.

Nor was there error in Bill of Exception No. 2, when the trial court ruled that a district attorney's investigator would be permitted to talk with the witnesses during the course of the trial. C.Cr.P. 764 permits the sequestration of witnesses and a prohibition against their discussing the facts of the case 'with anyone other than the district attorney or defense counsel.' The article further permits the court to modify the order of sequestration 'in the interest of justice.' The record discloses that the trial judge carefully instructed the investigator about conversation with the witnesses. There was no abuse of the court's power in its order.

Bill of Exception No. 3 was reserved when the court overruled an objection to a prosecution question as 'leading.' The question was: '. . . were you with him in Lake Charles or in Elton, Louisiana?' The question was asked in the alternative, and did not suggest an answer. R.S. 15:277. There was no error in Bill No. 3.

In Bill of Exception No. 4 defendants complain of the overruling of their objection to the question: 'What were they (the guns) doing there?' The objection was that the question called for a conclusion of the witness. In context, the State was asking its witness, a participant in the crime, to relate how stolen property happened to be located in a wooded area. There is no error in Bill of Exception No. 4.

Bills of Exception Nos. 5 and 6 were taken when the court overruled defendants' objections to certain of the prosecutor's questions as being 'repetitious and improper.' The questions were not 'improper.' They were, indeed, to some extent, repetitious. However, the testimony of the witness had not been clear, and the prosecutor was justified in his effort to clarify the testimony. See Wharton's Criminal Evidence § 413 at page 293:

'Ordinarily, the court should expedite proceedings by eliminating the unnecessary, repetitious, or prolonged examination of witnesses. However, the court may permit the repetition of a question in the same or another form, after an unexpectedly adverse answer, or after the witness was at first reluctant and evasive in his answers. Moreover, a question which substantially repeats testimony already given by the witness is nevertheless permissible when its purpose is to clarify and elucidate such earlier testimony.'

In Bills of Exception Nos. 7 and 8 the defendants complain that their cross-examination of the State's principal witness was wrongly curtailed. Marshall LaFleur was the younger brother of one of the defendants. He testified that he participated in the theft for which the defendants were on trial. Defense lawyers sought to examine him concerning some previous 'trouble' Marshall LaFleur had been in, related to marijuana, and had sought to read aloud the original bill of information, to which Marshall LaFleur had pleaded guilty.

The trial court was clearly in error in its reasons for denying the defendants the right to question the witness about the original bill of information. However, defense counsel never made clear the relevance of their effort to read to the jury the portion of the bill of information as it had been written, before it was amendment. The witness admitted the theft. He admitted pleading guilty, and had received a supended sentence.

It is closer question with respect to the marijuana 'trouble.' It is clear from the whole record and from the briefs that this cross-examination was designed to weaken the effect of inculpatory statements given by Marshall LaFleur to police officers at an early stage of the investigation, and therefore weakened the witness' trial testimony which incriminated the defendants. Defense lawyers were attempting to demonstrate that an inculpatory statement had been given to a deputy named 'Kotch' Guillory, either as a result of a threat to prosecute a marijuana conviction in another parish, or a promise not to prosecute.

However, we are not satisfied, as the trial judge was not, that there was any relationship between any inculpatory statement and the existence of a marijuana offense in another parish. The deputy mentioned was called by the State as a witness, was cross-examined, and testified to no inculpatory statement, and was not asked about any promises or threats toward the witness Marshall LaFleur. The record does not demonstrate any prejudice to the defendants.

Bill of Exception No. 9 was reserved when the court overruled a defense objection to a question: 'Did the other two people there know they were in possession of stolen property when they had those items in the car?' The question was asked for two reasons: the defense cross-examination seemed directed toward showing that the guns were taken during a drunken spree; the prosecution was attempting to demonstrate that the owner of the guns had not given permission for them to be taken from his house. Although the question might be characterized as 'conclusionary,' it was a shorthand method of obtaining relevant information from the witness. There is no merit to the bill.

Bills of Exception Nos. 14, 15 and 18 through 24 are related to the introduction of certain real or demonstrative evidence among which were pieces of glass, a piece of rug and an oil can found some twenty to thirty feet away from and across a path from where the stolen guns were found in the woods. Also introduced by the State were paint scrapings and pieces of glass taken from a gun cabinet in the victim's home. The State further introduced pieces of glass and carpet samples taken from an automobile of one of the alleged perpetrators and photographs of the interior of the automobile. Several objections in connection with the introduction of this evidence are not clear.

In Exception No. 14 defense counsel argue that the pieces of glass, piece of rug and oil can found in the woods should not have been admissible because they were not shown to be connected with or relevant to the case.

The rule defining relevant evidence is set forth in R.S. 15:441:

'Relevant evidence is that tending to show the commission of the offense . . .

'Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.'

The evidentiary fact offered does not need to have strong, full, representative value, or to produce persuasion by its role and intrinsic form, but it is sufficient if it is worth consideration by the jury. See State v. Freemen, 306 So.2d 703 (La.1975) and State v. Giles, 253 La. 533, 218 So.2d 585 (1969).

The State in the instant case needed to prove that the defendants had been in possession of the guns stolen from the victim's house. Apparently the State sought to prove this fact in part by showing that fragments of glass from the victim's gun cabinet were found with the guns in the woods, at the edge of the highway some twenty to thirty feet away from the guns, and in the car of one of the alleged perpetrators. The State apparently tried to show that the piece of carpet found with the glass beside the road was the same as that in the automobile. All of this real evidence was relevant under the test given above.

In Exceptions Nos. 15 and 24 defense counsel objected to introduction of the paint scrapings and glass from the victim's gun cabinet on the ground a proper foundation had not been laid. The argument is that the deputy sheriff who collected the items could not say for certain that the house from which they were taken belonged to the victim. However, they were sufficiently identified to...