State v. Ritchie
| Citation | 556 So.2d 651 |
| Decision Date | 24 January 1990 |
| Docket Number | No. 21117-KA,21117-KA |
| Parties | STATE of Louisiana, Appellee, v. Ronald L. RITCHIE, Appellant. 556 So.2d 651 |
| Court | Court of Appeal of Louisiana (US) |
Richard C. Goorley, Shreveport, for appellant.
William J. Guste, Jr., Atty. Gen., Henry Brown, Jr., Dist. Atty., James M. Bullers, Asst. Dist. Atty., for appellee.
Before HALL, C.J., and SEXTON and LINDSAY, JJ.
Defendant, Ronald L. Ritchie, was charged by bill of information with three counts of negligent homicide, in violation of LSA-R.S. 34:851.6. After trial by a six member jury, defendant was found guilty as charged and was sentenced to the maximum of one year in jail and a $1,000 fine on each of the three counts, with the sentences to run consecutively. Defendant appeals his convictions and sentences asserting six assignments of error. Finding no merit to the defendant's assignments of error, his convictions and sentences are affirmed.
FACTS
On May 17, 1987, defendant was operating his Tide Craft bass boat in an area known as the Bossier Slough in Lake Bistineau. The Bossier Slough intersects with a body of water known as Miller's Cut. Defendant, who was alone in his boat, had just passed a pleasure boat in which four people were riding. Defendant's boat passed them on the left and on the wrong or left side of the channel at a high rate of speed. At the intersection of Bossier Slough and Miller's Cut defendant's boat collided with a Glasstron ski boat proceeding in the opposite direction on its right side of the channel, operated by Albert Joseph Dupree, III, and occupied by three passengers, James W. Taylor, Aaron Matthew Chandler and James Warren Mayfield. The three passengers were killed in the accident, while the defendant and Mr. Dupree both survived.
Assignment of Error No. 1
Under this assignment of error the defendant asserts that the evidence regarding his possession and use of marijuana should have been ruled inadmissible as it was not alleged in either the bill of particulars or in the State's opening statement. The defendant also contends that the evidence of marijuana use and possession had no probative value, was highly prejudicial and was introduced solely to depict him as a bad person and to influence the jury against him.
Defendant was charged by bill of information with operating his Tide Craft boat in a "careless, reckless and negligent manner and/or at an immoderate rate of speed, resulting in a collision with a 1985 Glasstron boat" causing the death of the three victims. Defendant filed a motion for a bill of particulars requesting information on how he was alleged to have been reckless. The state responded that the defendant was careless, reckless, or negligent by "excessive speed, failure to maintain proper lookout, on wrong side of channel, failed to heed safe boating practices, failed to maintain proper control of his boat." Although the defendant was not informed specifically of the state's intention to use evidence of the defendant's possession and use of marijuana through the bill of information or the answer to the motion for bill of particulars, the defendant was specifically informed by the state of its intention to introduce evidence of defendant's marijuana usage in the state's answer to defendant's motion for discovery.
LSA-C.Cr.P. Art. 485 discusses the effect of inconsistent or limiting allegations in a bill of particulars. This article provides that the bill of indictment may be quashed if the indictment together with the bill of particulars does not charge the defendant with the crime he committed. Paragraph B under the official revision comments discusses the rationale behind the bill of particulars. This comment states in part, "The bill of particulars is intended to assure the defendant of a full understanding of the nature of the charge,". Thus the purpose behind the rule is to prevent the defendant being surprised and unable to respond or defend against something he was unaware the state intended to use against him.
In State v. Jenkins, 338 So.2d 276 (La.1976) no reversible error was found where the state failed to answer a question regarding the venue of an alleged offense in a motion for bill of particulars as the defendant had already received the information at the preliminary examination. In State v. Johnson, 513 So.2d 832 (La.App. 2d Cir.1987), writ denied 519 So.2d 124 (La.1988) the defendant objected to the trial court's allowing a piece of paper to be admitted into evidence where the state had refused to provide a copy of the paper as requested by defendant in his motion for bill of particulars. This court found no error as the defendant's attorney had apparently already examined the piece of paper and, thus, there was no showing that the defendant was surprised or harmed by the entry into evidence of the piece of paper. In State v. Panepinto, 542 So.2d 1073 (La 1989), the Louisiana Supreme Court went outside of the bill of particulars to the state's answers to defendant's discovery request to find the state had given sufficient notice of all the elements of the crime. In the case at bar there is no indication that the defendant was surprised by the marijuana evidence, as he had already been informed through discovery of the state's intentions to use this evidence.
Defendant also asserts the evidence regarding his possession and use of marijuana should have been ruled inadmissible as its prejudicial effect outweighed any probative value. Louisiana Code of Evidence Art. 403. Relevant evidence is that tending to show or negate the commission of the offense and the intent. Louisiana Code of Evidence Arts. 401, 402. The trial court's decision on relevancy is entitled to great weight and will not be overturned absent a finding of clear abuse of discretion. State v. Smith, 418 So.2d 515 (La.1982); State v. West, 419 So.2d 868 (La 1982). Evidence which is relevant and otherwise admissible should not be barred just because it is prejudicial. State v. Smith, supra; State v. Clift, 339 So.2d 755 (La.1976). Matters which are logically relevant to issues before the factfinder should not be excluded merely because they show the accused has committed other offenses. State v. Constantine, 364 So.2d 1011 (La.1978); State v. Herman, 358 So.2d 1282 (La.1978).
The defendant's argument is that there was no evidence that he was under the influence of marijuana at the time of the accident and therefore the evidence of his chronic use of marijuana and that he was in possession of marijuana at the time of the accident had no probative value and was irrelevant. Agent Barnes testified that although defendant denied smoking any marijuana on the day of the accident defendant admitted he had smoked marijuana the day before the accident. Agent Barnes also testified he found some suspected contraband, later identified as marijuana, in defendant's boat. The fact that marijuana was found in defendant's boat is highly probative of whether he smoked marijuana on the day of the accident. Dr. Eugene Mano, a toxicologist at LSU Medical Center, testified that defendant's urine test showed he was a chronic user of marijuana but it was impossible to determine whether the defendant had smoked marijuana in the past six hours or was simply a chronic marijuana user. Dr. Mano's testimony indicates that the chronic use of marijuana will sufficiently raise the concentration of marijuana derivatives in the blood and urine so that recent usage of the drug will be masked. He also testified to both short term and long term effects of marijuana usage. Dr. Mano testified that the short term effects of marijuana usage would be impaired judgment and dexterity. When combined with alcohol usage there would be an additive effect so that the short term effects would be exaggerated. The long term effect of chronic use of marijuana would also affect the ability to operate a motor vehicle or boat. The evidence of marijuana in the boat, and the existence of marijuana derivatives in the defendant's urine combined with the testimony showing that defendant had a .03 grams percent alcohol blood content, which allowing for the elimination rate of alcohol and the time between the accident and the blood alcohol test, would indicate that defendant's blood alcohol level at the time of the accident would have been between .06 and .08 grams percent, bear on defendant's ability to control and operate the vessel in a safe and prudent manner as expected of a reasonable person. Therefore, this evidence is clearly relevant and probative. Although prejudicial, the probative value of the evidence outweighs its prejudice in this case.
Therefore, this assignment of error is without merit.
Assignment of Error No. 2
By this assignment of error the defendant asserts the trial court erred in allowing into evidence the marijuana seized from defendant's boat. Defendant asserts that the search resulting in the marijuana seizure was performed without a search warrant having been obtained and, therefore, the evidence seized should be inadmissible. The trial court denied defendant's motion to suppress relying upon the defendant's reduced expectation of privacy in the bass boat. The state asserts that the warrantless search is supported by the automobile exception to the warrant requirement.
After his arrest, defendant was taken to LSU Medical Center for a medical examination and to have blood samples taken. While at LSU Medical Center, Agent Barnes overheard the defendant tell his wife that he had some "smoke" on the boat and she should get it if possible. This statement was overheard sometime between 10 and 11 o'clock p.m. Agent Barnes booked the defendant into jail at approximately 1 o'clock a.m., than went home and got some rest. At approximately 8 o'clock a.m. the following morning Agent Barnes, along with other officers, went to Camp Joy on Lake Bistineau, where defendant's boat was pulled up...
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State v. Ritchie
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