State v. Sears

• Decision Date: 01 July 1974
• Docket Number: No. 54574,54574
• Citation: State v. Sears, 298 So.2d 814 (La. 1974)
• Parties: STATE of Louisiana v. Dennis SEARS.
• Court: Louisiana Supreme Court

Page 814

298 So.2d 814

STATE of Louisiana v. Dennis SEARS.

No. 54574.

Supreme Court of Louisiana.

July 1, 1974.

Rehearing Denied Aug. 30, 1974.

James J. Gleason, III, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

The defendant was tried under an indictment charging him with murder. R.S. 14:30. He was convicted after a trial by jury and sentenced to life imprisonment at hard labor. He appeals.¹

On February 3, 1971 four young men were accosted by two men, one later identified as the defendant, as they left Carver High School in New Orleans, Louisiana. The men demanded the boys' coats. When they hesitated, Sears produced a pistol. One of the boys, Glenn Williams, ran and was shot and killed.

The accused argues that a defect patent on the face of the record exists in that the minute entries fail to indicate that the defendant was arraigned.

It is true that a defendant has a right to be arraigned. C.Cr.P. 551. However, where a defendant enters upon trial without objecting to the defect, he is deemed to have waived his right under C.Cr.P. 555, which provides:

'Any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.'

Moreover, the defendant does not contend nor show that any prejudice resulted from the entering of the plea of not guilty. Cf. State v. Franks, 284 So.2d 584 (La.1973).

This contention is without merit.

Bill of Exceptions No. 1

This bill was reserved when the trial court sustained the State's refusal to divulge its list of witnesses in response to a bill of particulars.

The ruling of the trial judge was correct. There is no right to broad pretrial discovery in criminal cases. State v. Hunter, 250 La. 295, 195 So.2d 273 (1967).

This bill is without merit.

Bill of Exceptions No. 2

This bill was reserved when the trial court denied defendant's request for discovery of oral inculpatory statements, written unsigned inculpatory statements, paraphrased inculpatory statements in the police or district attorney's files, laboratory reports and a list of the physical evidence in the possession of the State.

As stated above, except for certain exceptions, there is no right to pretrial discovery in criminal cases. The requests by defendant do not fall within any of the exceptions and were properly denied. See State v. Lawrence, 294 So.2d 476 (La.1974).

Bill of Exceptions No. 4

This bill was reserved when the trial court sustained the State's objection to introduction of a letter written to Sears' lawyer and purportedly signed by Sears at the hearing on a motion to suppress. The letter was offered as being probative of the fact that the accused was illiterate. The State's objection was based on failure to lay an adequate foundation for introduction.

The letter itself was of no probative value. Defendant Sears said he did not write it. The witness Wilson denied writing it and testified that Sears did not write it. Wilson recognized the handwriting as that of one Robey, who was not present. The admission of the letter itself would add little or nothing to Sears' contention that he could not write, and its exclusion was not error.

There is no merit in this bill.

Bill of Exceptions No. 5

This bill was reserved when, at the trial on the motion to suppress the confession, Lawrence Matthews, then a co-defendant, was called to testify by Sears' lawyer. Matthews' lawyer announced that he would allow him to take the stand 'for the limited purpose of being examined and cross-examined on the question of letter writing . . .'. The object of the testimony was to contradict the police, who had testified that Sears could read and write.

The State objected, declining to limit the cross-examination in advance.

Examination and cross-examination would have been limited on the motion to suppress to a determination of the admissibility of the confession. The position of the prosecution and the ruling of the trial court were probably erroneous. But in the midst of the trial, in the context of which Matthews' attorney sought to limit the State's cross-examination prior to the direct examination, the error is excusable, and not reversible for the reason that Sears and Wilson had both testified that Sears could not write. Sears, however, admitted that he could read some words. Matthews' cumulative testimony could not be expected to change the ultimate finding by the trial judge that the confession was admissible.

This bill is without merit.

Bills of Exceptions Nos. 6, 19 and 21

These bills pertain to the denial of the motion to suppress defendant's confession and the subsequent introduction of that confession in evidence. It is alleged that the confession was involuntary because it was coerced by physical force and was given while the accused was under the influence of drugs, and because of the illiteracy of the accused.

The record supports the conclusion that the confession was obtained after the defendant was advised of his constitutional rights and without use of force, promises or threats. The defendant testified that he had used heroin shortly before his arrest. At hearing on the motion to suppress defense counsel attempted to establish that the defendant was ill, suffering withdrawal symptoms, at the time the confession was gained. The police officers who were present when the statement was given all testified that the accused appeared to be normal during this period. The defendant testified that he was 'not coming down' during this time. There is no evidence to support the contention that the defendant's awareness and understanding of his circumstances were affected by his use of drugs.

Nor do we find merit in the contention that the confession was not free and voluntary because the accused is allegedly illiterate. The evidence clearly establishes that the defendant understood he was giving a statement regarding his involvement and participation in the crime before the bar. He signed the statement understanding it to be such after being advised of his rights under Miranda. Under the circumstances his alleged inability to read or write does not affect the voluntary nature of the statement. The confession was properly admitted in evidence.

These bills are without merit.

Bills of Exceptions Nos. 7, 15, 17, 18, 23 and 27

These bills relate to the identification of the defendant.

Bill No. 7 was reserved in response to the trial court's denial of defendant's motion to suppress the line-up identification of the defendant. The evidence adduced at hearing on the motion establishes that the line-up was conducted in a fair and nonsuggestive manner. Cf. State v. Newman, 283 So.2d 756 (La.1973).

The procedure in question was a six man line-up. The other participants were similar in height, build and other physical characteristics to the accused. The accused was allowed to select his position and to position the other men as he pleased. There is no indication that the police officers attempted to suggest to the witnesses viewing the line-up that they should pick out the defendant. The conduct of an identification procedure in such a manner does not offend the rights of an accused.

Bill No. 15 was reserved when the trial court overruled defendant's objection to an in-court identification by a witness. The ground for the objection was an allegation that the State had failed to lay a proper predicate or foundation for the identification.

Assuming that where an in-court identification is attacked as tainted it is necessary to establish that prior identification procedures were conducted fairly and in observance of the rights of the accused or that the identification has a source independent of the tainted procedure, nevertheless the ruling of the trial court was not erroneous. See State v. Jones, 261 La. 422, 259 So.2d 899 (1972). The fact that the in-court identification was not tainted by prior illegal procedures was established on the motion to suppress. This was sufficient to permit the in-court identification.

Bill No. 17 was taken when the trial judge overruled defendant's objection to testimony concerning a tentative identification made at a line-up by the witness. Bill No. 18 was reserved when that same witness made a positive in-court identification of the defendant. Neither bill has merit. The identification was not tainted. The failure of the witness to make a positive identification at the line-up goes to the weight to be given the in-court identification. The rulings of the trial court were correct.

Bill No. 23 pertains to a ruling permitting introduction of a waiver of attorney form executed by the defendant in conjunction with a line-up procedure. Defendant's contention with respect to this bill is apparently that the line-up was tainted because the defendant was not furnished counsel and because the waiver form was not effective. The line-up in question was held the day after the accused was arrested and approximately three weeks prior to the time an indictment was returned against him. Counsel need not be provided at an identification procedure held before formal institution of prosecution. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Lawrence, supra.

Bill No. 27 was reserved when the trial court overruled defendant's objection to introduction of a photograph of the line-up. It suffices to say that the photograph was probative and was admitted in evidence after the proper foundation was laid.

These bills are without merit.

Bill of Exceptions No. 11

This bill pertains to the excusing of a...