State v. Richey, 50938

• Decision Date: 07 June 1971
• Docket Number: No. 50938,50938
• Parties: STATE of Louisiana v. Joseph RICHEY.
• Court: Louisiana Supreme Court

Page 143

249 So.2d 143

258 La. 1094

STATE of Louisiana v. Joseph RICHEY.

No. 50938.

Supreme Court of Louisiana.

June 7, 1971.

Rehearing Denied June 28, 1971.

Gold, Hall, Hammill & Little, Jimmy M. Stoker, James D. Davis, Alexandria, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Martin H. Laird, III, Asst. Dist. Atty., for plaintiff-appellee.

HAMLIN, Justice:

Defendant appeals from his conviction of Armed Robbery, LSA-R.S. 14:64, and his sentence to serve thirty years in the Louisiana State Penitentiary. Twenty-seven bills of exceptions reserved during the course of the proceedings are presented for our consideration.

The record discloses that shortly after Herbert Reiszner, proprietor of a general merchandise store at Meeker, Louisiana, on Highway No. 167, Rapides Parish, opened his store at 7:30 A.M., March 14, 1970, a car was driven in front of the gasoline pumps situated outside of the store; the driver, who left the engine running, directed that the car be filled with gasoline; after being instructed to turn off his engine, the man did so and entered the store; upon entering the store to calculate the bill, Reiszner saw the man trying on caps--they were similar to golf caps, dark green or grey, bearing a gold emblem in the shape of a fish--and on seeing Reiszner, the man laid his sun glasses and a cap on the counter; aiming a small 22 caliber pistol at the storekeeper, the man demanded that he give him his money; Reiszner threw two billfolds on the counter, and after removing approximately $200.00 from them the man departed, taking with him the stolen money, the sun glasses, and a cap.

On hearing the car engine start, Reiszner, who had been told by the robber to lie on the floor, jumped up and observed the direction taken by the driver. He telephoned the State Police, giving a complete description of the robber, the robber's car, and the clothes worn by the subject. This notification was followed by a call to the Sheriff's Department with a repetition of the description. Reiszner then discussed the robber with his wife, relating to her all details of the incident, after which she left to search for the robber.

Law enforcement men arrived at the store shortly after the robbery and were given a complete account of what had taken place. Reiszner then went down to Lloyd's Bridge, approximately two miles from his store, to observe a car which had been involved in an accident; he identified the car as the one driven by the robber. Inside the car were a small pistol (not the one pointed at Reiszner), sunglasses, and a pink slip; the driver of the car was not present, and it was later determined that the car had been stolen from Byron G. Bunch of Gramercy, Louisiana, and that the pistol found in the car belonged to him.

Johnny Wilmore, Chief of Police of Cheneyville, Louisiana, and a Deputy Sheriff for Rapides Parish, spoke with Mrs. Reiszner in Cheneyville at approximately 8:30 A.M., a short time after the robbery. She gave him a complete description of the robbery, and he immediately went to Lloyd's Bridge and observed the wrecked car; a lengthy discussion ensued between him and other officers present. During the afternoon he discussed the robbery with Mr. Reiszner and received a complete description of the robber. At approximately 10:30 P.M., Wilmore, accompanied by Officer William T. Dugan, saw the defendant in a residential area; realizing that he was not a local man, wilmore alighted from his car and engaged the defendant in conversation in an area that was not well lighted. The officers then left the defendant to pursue a speeding car. At approximately 11:45 P.M., Wilmore, riding with Dugan, saw the defendant at the bus stop on Main Street and Highway No. 71, Cheneyville, a well lighted area. Dugan stopped the car, and Wilmore walked to the sidewalk where he questioned the defendant. After questioning, Wilmore informed the defendant that he was placing him under arrest. Wilmore's reason for arrest was probable cause of armed robbery and auto theft. Defendant was placed in the back of the police car, neither handcuffed nor restrained, and taken to the exterior of the Reiszner store. With one foot on the ground and the other one still in the car, defendant reached in his pocket and pulled out some money, saying to Officer Wilmore, 'Here's the money, I spent part of it, the gun is in the car.' With defendant standing near the car and a flashlight directed on his face, Reizner identified him as the man who had robbed him. After allegedly being given the Miranda warnings and handcuffed, defendant was taken to the Rapides Parish Sheriff's Office where he was booked for Armed Robbery and Auto Theft; he was then searched, and among the articles removed from his person were a 22 caliber pistol and a cap. A bill of information filed against the defendant on March 24, 1970 charged him with the armed robbery of Herbert Reiszner, Jr. on March 14, 1970.

BILL OF EXCEPTIONS NO. 1

Bill of Exceptions No. 1 was reserved to the trial court's denying defense counsel's motion for a preliminary hearing.

The Minutes of Court of April 3, 1970, recite, in part:

'Motion for continuance of arraignment was taken up, argued and submitted. Motion denied. Hearing on motion for preliminary hearing, was called. Motion argued and submitted. Motion denied. To which ruling of the Court, counsel objected and reserved bill of exception. The accused was formally arraigned. Defendant stood mute. Court ordered that a plea of not guilty be entered.'

Herein, counsel for the defendant contend that the accused and his counsel were without any knowledge whatsoever of whether the State had or purported to have any evidence of identification, confession or inculpatory statements made by the accused, and that the accused was first frustrated in his efforts to probe into the State's case by denial of his motion for a preliminary examination or hearing.

Article 292, LSA-C.Cr.P., provides that before the finding of an indictment or the filing of an information, the court, on request of the State or of the defendant, shall immediately order a preliminary examination in felony cases. 'The right to preliminary examination in this State is designed primarily to determine whether probable cause exists to charge the accused. It is also an important safeguard against high-handed police procedures and third degree methods. It provides an opportunity to bring defense counsel into the picture--implementing the constitutional privilege against self-incrimination and the right to bail. * * *' State v. Hudson, 253 La. 992, 221 So.2d 484, 489, 490 (1969). Article 292 further provides that after the finding of an indictment or the filing of an information, an order for a preliminary examination in felony cases may be granted by the court at any time either on its own motion or on request of the State or of the defendant. '* * * the law is well settled in this state and under the federal system that, since the purpose of a preliminary hearing is to determine probable cause, no such hearing is required where the defendant has been indicted by a Grand Jury (the same principle applies to the filing of a bill of information) because the fact of indictment evidences probable cause. * * *' State v. Singleton, 253 La. 18, 215 So.2d 838, 839, 840 (1968). Therefore, after the finding of an indictment or the filing of an information, an order for a preliminary examination in felony cases is a matter within the sound discretion of the presiding judge. State v. Hudson, supra.

As stated supra, the present bill of information was filed against the defendant on March 24, 1970, and the motion for a preliminary hearing was filed on April 2, 1970. The granting or refusing of a motion for a preliminary hearing was therefore a matter within the discretion of the trial judge. Under the facts and circumstances herein, we find no abuse of discretion by the trial judge; no error exists in his ruling. State v. Manuel, 253 La. 195, 217 So.2d 369. Additionally, the jury returned a verdict of guilty, and we shall find, infra, that the bills of exceptions presented are without merit. The correctness of the trial judge's ruling with respect to a preliminary hearing is now a moot issue. State v. Pesson, 256 La. 201, 235 So.2d 568.

Bill of Exceptions No. 1 is without merit.

BILL OF EXCEPTIONS NO. 2

Bill of Exceptions No. 2 was reserved to the trial court's ruling that the State's answer to a motion for a bill of particulars was sufficient. It was also reserved to the trial court's overruling defense counsel's motion challenging the sufficiency of the State's answer to the motion for a bill of particulars. The Bill questions the correctness of the trial court's denial of a motion for continuance and its denial of a motion to suppress evidence and identification.

Counsel for the defendant argue herein:

'As may be noted from the statement of the case, one of the principal items of the State's evidence was the oral inculpatory statement and incriminating action of Joseph B. Richey rleated by Deputies Wilmore and Duggan about which they testified and which they stated took place when Richey was taken to Reizner's for identification after he was arrested in Cheneyville. Although the State gave notice, presumably under Article 768 of the Code of Criminal Procedure, of intention to introduce evidence of 'oral statements' made by the accused including the one referred to above, there was no way under the rulings of the Court, for the accused or his counsel to know what the 'oral statements' related to. (This matter is subject to Bill of Exception No. 23). Under the circumstances the three motions covered by Bill of Exception No. 2 are quite critical to the accused's case. These three matters were the motions made before trial for a Bill of Particulars, Motion to Suppress Evidence and Identification and...