State v. Rittiner
| Decision Date | 30 November 1976 |
| Docket Number | No. 58118,58118 |
| Citation | 341 So.2d 307 |
| Parties | STATE of Louisiana v. Paul C. RITTINER. |
| Court | Louisiana Supreme Court |
Robert McComiskey, Emile A. Carmouche, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Adam L. Ortego, Jr., Asst. Dist. Atty., for plaintiff-appellee.
By bill of information filed October 28, 1975, the State charged defendant, Paul C. Rittiner, with possession of marijuana with intent to distribute, a violation of Section 966 A of Title 40 of the Revised Statutes. Subsequently, on December 17, 1975, the bill was amended to charge 'criminal conspiracy to possess marijuana with intent to distribute in violation of LSA R.S. 40:979.'
A motion to quash filed by defendant, wherein he contended the bill was defective for failure to charge an overt act, was sustained by the trial court on January 7, 1976. On the same day the State was allowed to amend the bill of information to charge that defendant conspired with five named individuals to possess marijuana with intent to distribute. In this amended bill the State alleged that defendant furthered the conspiracy by '. . . coming to Lake Charles, Louisiana and meeting with the co-conspirators and planning and receiving and assisting in the possession of a large shipment of hashish.'
In a jury trial on the amended charge, defendant was found guilty and sentenced to serve five years at hard labor. On this appeal he urges twenty assignments of error, which are grouped into twelve arguments.
According to the assignment of error
To this assignment of error, the trial judge filed the following per curiam:
'On the first day of trial of this cause, and before the open(ing) statements, the Assistant District Attorney filed a formal notice of intent to use evidence of an inculpatory nature against the defendant as required by Article 768 of the Code of Criminal Procedure. Defense counsel objected to the introduction of any evidence of an inculpatory nature because the notice of intent was not timely filed. The objection was overruled by the court.
'C.Cr.P. Article 768 requires that the State shall advise the defendant in writing, prior to beginning the State's opening statement, of the State's intent to introduce a confession or inculpatory statement in evidence. The jurisprudence interpreting Article 768 recognizes its essential purpose as being to afford notice to the defendant of inculpatory statements or confessions sufficient to enable him to prepare his defense as to the issue. State v. Cascote (Lacoste), 256 La. 697, 237 So.2d 871 (1970).
Defense counsel's objection when the State introduced the Notice of Intent that it would use inculpatory statements was as follows:
'Your Honor, the defense would object to the introduction at this time of any . . . or rather the Notice of Intent as not being timely filed and ask the Court to rule on that objection.'
The objection was overruled.
The issue presented by the assignment of error, and the issue considered in the per curiam, was whether the notice of intent to use inculpatory statements was timely filed by the State. The notice was filed prior to the opening statement strictly in accordance with Article 768 of the Code of Criminal Procedure, which provides:
The ruling of the trial judge was correct.
However, in brief here defendant refers to his argument that the State misled him long before the trial by answering to the defense motion for a bill of particulars and prayer for oyer that it had no inculpatory statements for use in evidence.
The motion for bill of particulars asked, 'Did the defendants admit to the commission of the offense charged?' To this inquiry the State answered, 'No.'
The next interrogatory was: 'Does the State have in its possession any written confessions, signed by either defendant.' To which the State answered, 'No.'
Finally, the motion asked, 'Does the State have in its possession any sound recordings of any oral confessions?' Again the State answered, 'No.'
The motion for oyer sought the production of oral confessions or statements of an inculpatory nature allegedly made by defendant, together with written and recorded confessions and inculpatory or exculpatory statements. This motion was denied.
Insofar as the motion for bill of particulars is concerned no confession or inculpatory statements were used by the State against the defendant at the trial. The statements apparently relied upon by the defense are those of the witness Zielenski, who testified at the hearing prior to trial to determine whether a prima facie case of conspiracy could be established, ostensibly to meet the requirements of Section 455 of Title 15 of the Revised Statutes. 1
Zielenski testified to conversations with defendant which were part of the conspiracy--the offense charged. By the very nature of that crime conversations of the conspirators are often necessary elements of the offense required to be proven. In such a case these conversations are actually inculpatory, but they do not fall within the definition of inculpatory statements contemplated by Article 768, which requires that the State advise the defense prior to the opening statement that it will introduce confessions or inculpatory statements in evidence.
Conversations which tend to establish the conspiracy are acts which are part of the offense itself, while the confessions and inculpatory statements contemplated by Article 768 are out of court admissions of incriminating facts made after the commission of the crime. State v. Brumfield, 329 So.2d 181 (La.1976). In keeping with this theory, this Court has held that the term 'inculpatory statement' refers to 'past events.' State v. Fink, 255 La. 385, 231 So.2d 360 (1970).
Thus the State's answers to the motion for a bill of particulars were correct. It introduced no confessions or inculpatory statements which it was compelled to disclose. The only conversations relied upon by the State related to those which were part of the conspiracy, utterances of the defendant tending to prove the crime itself--not admission after the offense.
At the beginning of the State's case in chief, the Assistant District Attorney offered into evidence the search warrants obtained in connection with the defendant's arrest. When the defense objected, the Court overruled the objections. Assignment of error 2 was made to this ruling.
Defendant relies in brief on this Court's decisions in State v. Humble, 309 So.2d 138 (La.1975); State v. Paciera, 290 So.2d 681 (La.1974) and State v. Linkletter, 286 So.2d 321 (La.1973). The argument is that the affidavit in support of the search warrant does not set forth facts which establish the requisite probable cause to justify issuance of the warrant. The affidavit, the argument continues, does not set forth that the unidentified informant had ever given prior accurate reports. Further, it does not contain specific independent corroboration of the report of the unidentified informant or set forth how the confidential informant obtained the information.
A review of the detailed affidavit presented in support of the issuance of the warrant establishes that, subsequent to the receipt of the informant's tip, the investigating officers verified the information received. This was done by setting up a surveillance of the parties implicated in the conspiracy whose movements were observed over a two-day period.
During the surveillance, movements and actions were observed which were wholly consistent with the informant's tip to the effect that defendant and his accomplices were preparing to smuggle contraband into the area. In the affidavit it was recited that the parties to the conspiracy went to the dock where the ship carrying the marijuana was docked. There they were observed through binoculars putting several green, canvas, army-type bags into their car trunk.
Upon returning to the motel, where there was continuous surveillance, an officer observed one of the coconspirators take one of those bags into his motel room. An officer detected a heavy aroma of marijuana coming from under the room's door, and heard coconspirator Kompel tell his wife that they had 'over a million and a half worth of the stuff.'
When several of the conspirators loaded their cars and settled their accounts with the hotel, the officers moved in and arrested all of the coconspirators present. Thereafter the officers sought the warrants...
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