State v. Rouse
| Decision Date | 04 May 1970 |
| Docket Number | No. 49953,49953 |
| Parties | STATE of Louisiana v. Milton Cleo ROUSE. |
| Court | Louisiana Supreme Court |
Boles & Ryan, Charles H. Ryan, Monroe, for appellant.
Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Albin P. Lassiter, Dist. Atty., Charles A. Traylor, II, Asst. Dist. Atty., for appellee.
Defendant Milton Cleo Rouse was charged by bill of information with the crime of theft in the amount of $169.48 by use of a credit card. When arraigned he entered a plea of not guilty. After trial by a jury of five, he was convicted and sentenced to serve six years at hard labor in the state penitentiary.
Eight bills of exceptions were reserved during the course of the trial, which are relied upon to support this appeal.
Did the Central Bank ever confirm to you in writing or confirm to you in any manner that they had received your message about the loss of the card?
The witness replied,
Well on November the 7th Mr. Ross Johnston called me and advised me that a receipt had shown up or they had gotten a call from a place in Baton Rouge that my card had been used in the name of Joe B. Smith for a lodging in a motel and that a T.V. set had been stolen from that motel and they were checking to see if Mr. Johnston knows a Joe B. Smith.
As a result of this reply, defense counsel instructed the witness to confine his answers to the question propounded. Thereafter the witness was asked another question which he answered. Defense counsel then objected to the answer given by the witness to the previous question quoted above, because it was not responsive, and he requested that the Court instruct the jury to disregard the witness' answer. When the Court refused to do so, this bill was reserved.
As the trial judge observed in his per curiam to this bill, the answer was responsive. The witness had testified that he reported the loss of the credit card to the bank. When Ross Johnston, the bank's representative, advised him by telephone that his card had been used at a Baton Rouge motel, the card's loss was 'confirmed.' The fact that the witness gave details of the circumstances whereby the bank 'confirmed' the loss of the card does not make the answer unresponsive. Every answer may be explained by the witness unless, under special circumstances, he is instructed by the court to the contrary. This bill is without merit.
These bills involve the validity of a waiver of a search warant and a consent to search and seize.
Smith, the prosecuting witness, was a State Police Officer. While off duty he and another officer obtained permission from Doris Jones to enter the house occupied by her at 2712 Lee Avenue in Monroe. Doris Jones was defendant's sister. It was shown, also, that it was defendant's custom to stay with her when he was in Monroe. As a result of the search, a purse and a dress were found. These articles were gifts to Doris Jones from the defendant. The articles were later shown to have been purchased with the stolen credit card.
Permission to enter the house had been obtained in writing, signed by Doris Jones in the presence of two witnesses. The document was complete and thorough. It contained a waiver of a search warrant and the consent of Doris Jones for the officers to search her house and seize anything which had been stolen.
These facts were testified to by Smith, and the written waiver and consent is part of the record. On cross-examination, defense counsel asked Smith if he knew whether Doris Jones had a police record at the time. The State's attorney objected that the question was an improper effort to impeach the validity of the written waiver and consent. On the other hand, defense counsel argued that he intended to show by the question and answer that Doris Jones was on parole, and, therefore, she was in no position to deny permission for the search to police officers. He asserts that the evidence he was seeking would show that the waiver and consent were not free and voluntary. The trial judge ruled the evidence inadmissible, but instructed counsel that he might attack the free and voluntary character of the waiver and consent by other evidence. Whereupon, bill number 2 was reserved. Bill number 3 was reserved later when defense counsel objected to the introduction of the dress and purse, and the objection was overruled.
The record does not establish that defendant lived at the house where the search took place. It is only shown that he stayed there when he was in Monroe, and there is no showing that these visits were frequent. Defendant was not in the house at the time, and the objects seized as a result of the search were the property of Doris Jones. It is difficult, therefore, to understand how defendant could contest the validity of the waiver and consent when his waiver or consent was not involved. His premises were not searched. His goods were not seized. Only Doris Jones was in a position to complain, and the record contains no evidence that she objected.
In State v. Page, 251 La. 810, 820, 206 So.2d 503, 507 (1968) we said:
Defendant Ralph Page neither resided at the address nor was he present at the time of the search for the stolen property. Since his privacy was not violated, the search infringed none of his constitutional rights. Hence, in our opinion, he has no standing to attack the search and seizure or suppress the evidence.
The Page ruling is appropriate to the facts of this case and bills number 2 and 3 are without merit.
In the course of his examination of a state witness, the prosecutor asked if a photograph he exhibited to the witness contained a likeness of the defendant. The question was asked because, although the witness had sold merchandise to a customer with long hair who paid for it with the stolen credit card, at the time of the trial the defendant had a conventional haircut. The prosecution, therefore, was attempting to establish by the photograph taken of the defendant when he had long hair that the person before the court with a conventional haircut was the same person who presented the stolen credit card to the witness.
Defendant's counsel objected to the question because the proper foundation had not been laid to permit the photograph to be introduced in evidence. The objection was overruled and this bill was reserved. Later the State established the proper foundation by the testimony of a deputy sheriff who had taken the photograph when he 'mugged' the defendant in connection with a previous offense. At that time the photograph was introduced in evidence.
Since no effort was made to introduce the photograph in evidence at the time of the objection, the objection was premature. It was simply a matter involving the order of proof decided upon by the State in presenting its case. The subject is controlled by statute, viz.:
Neither the state nor the defendant can be controlled by the court as to the order in which evidence shall be adduced; but when the evidence requires a foundation for its admission, the foundation must be laid before the evidence is admissible. La.Code Crim.Proc. Art. 773.
Article 773 of the Code of Criminal Procedure guarantees that counsel shall have a free hand in the presentation of his case and is authority for the correctness of the trial court's ruling. The bill is without merit.
Deputy Sheriff Sievers was called as a witness for the purpose of identifying the photograph which he had taken of the defendant. Defendant objected to Sievers testifying because he had not been instructed with all the other witnesses in accordance with Article 764 of the Code of Criminal Procedure which provides:
Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.
Before ruling on the objection, the trial judge ascertained by interrogation that the witness had not been in the courtroom during the trial and that he had not discussed the case with others. He then properly overruled the objection. Wide latitude is accorded the trial judge in such matters and, as Article 764 sets forth, 'The court may modify its order in the interest of justice.'
Bill No. 6 (Abandoned) Bill No. 7
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