State v. Spencer

• Citation: 444 So.2d 354
• Decision Date: 22 December 1983
• Docket Number: No. 83,83
• Parties: STATE of Louisiana v. George R. SPENCER. KA 0847.
• Court: Court of Appeal of Louisiana (US)

Page 354

444 So.2d 354

STATE of Louisiana v. George R. SPENCER.

No. 83 KA 0847.

Court of Appeal of Louisiana, First Circuit.

Dec. 22, 1983.

Johnny McGary, Asst. Dist. Atty., Amite, for plaintiff-appellee.

Richard A. Schwartz, Asst. Public Defender, Amite, for defendant-appellant.

Before PONDER, WATKINS and CARTER, JJ.

WATKINS, Judge.

Defendant, George R. Spencer, was charged by bill of information with three counts of negligent homicide, violations of LSA-R.S. 14:32. The charges arise out of an automobile accident wherein three persons who were passengers in a vehicle struck by defendant died as a result of injuries sustained in the collision. A jury convicted defendant as charged, and he was subsequently sentenced to serve three years on each count, the sentences to be served consecutively. He has appealed, alleging two assignments of error.

ASSIGNMENT OF ERROR NUMBER ONE:

The basis for this assignment of error is the denial of an oral request for continuance by defense counsel in order to permit Richard Schwartz, defendant's trial counsel, to conduct the voir dire examination, since Mr. Schwartz was going to represent the defendant at trial. Defendant was represented by the office of the public defender for the Twenty-First Judicial District throughout these proceedings. Mr. Schwartz had been subpoenaed to appear out of town on the morning of the trial, although he expected to return prior to trial. The voir dire examination was conducted by Richard Macaluso, another attorney for the office of the public defender, who had represented defendant at the preliminary hearing.

Defendant filed a motion to quash the bill of information which was heard and denied on the morning that the trial was scheduled. Mr. Macaluso represented defendant at the hearing and, at the close of the hearing, orally requested a continuance until the afternoon so that Mr. Schwartz could conduct the voir dire examination. The court refused to grant the continuance and proceeded with the selection of the jury. After the jury was chosen, court was recessed until the following morning, at which time the trial began with Mr. Schwartz representing the defendant.

A motion for a continuance must be in writing and allege specifically the grounds upon which it is based. State v. Buckenburger, 428 So.2d 966 (La.App. 1st Cir.1983); LSA-C.Cr.P. art. 707. An oral motion presents nothing for the court to review. State v. Buckenburger, supra. Where the occurrences that allegedly make the continuance necessary arose unexpectedly, and defense had no opportunity to prepare a written motion, the court may review the denial. See, State v. Washington, 407 So.2d 1138 (La.1981). The granting or denial of a motion for continuance rests within the sound discretion of the trial court, and its ruling will not be disturbed absent a showing of clear abuse of discretion. State v. Norman, 432 So.2d 332 (La.App. 1st Cir.1983).

We find no abuse of discretion in the denial of the motion for continuance, although the particular attorney of the public defender's office who had been assigned to try this case had been subpoenaed to appear out of town. Presumably, once subpoenaed, counsel would have had sufficient opportunity to prepare a written motion; moreover, substitute counsel from the same office should have been able to review defendant's file in time to be sufficiently apprised of the facts of the case to adequately prepare for jury selection, particularly since the attorney who was present at voir dire had represented the defendant at the preliminary hearing. We find no prejudice to the defendant and no error in the court's ruling.

ASSIGNMENT OF ERROR NUMBER TWO:

In this assignment of error, defendant contends that the trial court erred in failing to grant a mistrial when the state attempted to impeach defendant's credibility by questioning him about his prior criminal record. Defense counsel contends that he was denied discovery of defendant's prior criminal record, although discovery was properly sought. Specifically, the state cross-examined defendant with regard to a conviction for the forgery of a check in Arkansas, although the defense contends the prosecution failed to furnish such information to defense counsel upon the defense's seeking such information on discovery. When the state alluded to the prior conviction in the process of cross-examining defendant, defense counsel immediately objected and requested...