State v. Sweeney
| Decision Date | 28 November 1983 |
| Docket Number | No. 82-KA-1913,82-KA-1913 |
| Citation | 443 So.2d 522 |
| Parties | STATE of Louisiana v. Isaac SWEENEY. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Carmouche, Dist. Atty., Carey Schimpf, Asst. Dist. Atty., for plaintiff-appellee.
Glenn Langley, Shreveport, for defendant-appellant.
Isaac Sweeney was charged by bill of information with possession with intent to distribute phenmetrazine in violation of La.R.S. 40:967(A). After a bench trial, defendant was found guilty as charged and sentenced to serve five years at hard labor with credit for time served. On appeal, defendant relies on ten assignments of error for reversal of his conviction and sentence.
Defendant contends the trial judge erred in denying his motion to quash based on a denial of his right to a speedy trial as guaranteed by the federal and state constitutions.
Defendant was arrested on April 27, 1981. At that time, he was out on bond after an arrest for forgery and receiving stolen goods. On July 24, defendant filed a motion in this case for a speedy trial. On September 8, defendant pled guilty in the other matter to a reduced charge of attempted theft under one hundred dollars and was sentenced to serve six months with credit for time served. Meanwhile, this case had been set for trial for September 28. On that date, the state and defense both announced they were ready to proceed to trial. However, the case was first reset and then continued to the next jury term due to another trial which consumed the entire period. Twice more, in both the October 19 and November 16 jury terms, the case was reset and then continued to the next jury term due to other trials. On November 16, defendant filed a motion to quash based on a denial of his right to a speedy trial. The trial judge denied the motion on November 30, 1981 without a hearing. This court granted writs and ordered a contradictory hearing be held pursuant to La.Code Crim.P. art. 701(D). At that hearing (held on December 22), the trial judge found any delay from arrest to the first trial date had not been undue because of reassignments and problems concerning codefendant's counsel. Evaluating all the circumstances since then, the judge found the state had exercised due diligence and denied defendant's motion to quash. On December 15, defendant posted bond. Defendant was tried and convicted on January 14-15, 1982.
The right to a speedy trial is guaranteed by the sixth amendment to the federal constitution and by article one, section sixteen of our state constitution. The right attaches when an individual becomes an accused whether by formal indictment or bill of information or by arrest and actual restraint. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Perkins, 374 So.2d 1234 (La.1979). Four factors must be considered in determining whether a defendant has been deprived of his right to a speedy trial: (1) length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The initial inquiry is into the length of delay; if the delay is presumptively prejudicial, there will be an inquiry into the other factors. The length of delay that will provoke such an inquiry is dependent upon the peculiar circumstances of the case. State v. Dewey, 408 So.2d 1255 (La.1982).
In this case, the length of delay between arrest and the felony trial--eight and one-half months--was not undue. Also, the reason for the delay, which is closely related to the length of the delay, involved the inordinate number of criminal cases on the docket at that time. Defendant concedes there was no bad faith by the state in delaying his prosecution. Furthermore, while he did timely assert his right, there was no prejudice to defendant. Defendant's time served from arrest to October 19 was attributed to his sentence on an unrelated offense. The following two months of incarceration prior to his posting bond was not oppressive. Of course, defendant was prejudiced to some extent by living under a cloud of suspicion and anxiety. Most importantly, however, defendant's ability to adequately prepare his defense was not impaired. 1
Hence, we do not find that defendant's right to a speedy trial has been violated. The trial court properly denied the motion to quash.
Assignment of Error No. 1 is without merit.
Defendant contends the trial judge erred in denying his motion for the trial judge to view the scene of the crime. Defendant argues the trier of fact should have viewed the scene at night since the officers' ability to observe and identify defendant was the crucial defense issue.
Defendant requested that the trial judge look at the scene of the crime with binoculars from the vantage point of the officers and see if he could see the specific details of reenacted transactions like those the officers said they saw on the night in question. The defense at trial maintained that if the officers were wrong about the details of the drug sales they claimed to have seen, they could be wrong about the defendant being a participant, instead of being a late arrival as he claimed. The trial judge denied the request. He explained that there was ample testimony on the distances and lighting conditions at the scene and an accurate defense diagram. Considering this evidence and the terrible winter conditions then prevailing and recognizing the issue was primarily one of credibility between the officers and the defense witnesses, the trial judge declined to place himself in a position of becoming a witness as to what he himself could see.
The grant or refusal of a motion to have the trier of fact view the scene of the crime is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. La.Code Crim.P. art. 762(2); State v. Moore, 432 So.2d 209 (La.1983); State v. Johnson, 294 So.2d 229 (La.1974).
In this case, there was ample evidence before the judge to make sufficiently clear the layout and lighting conditions under which the officers had observed the incidents. Hence, the trial judge did not abuse his discretion in denying defendant's motion to view the scene of the crime.
Assignment of Error No. 2 is without merit.
Defendant contends the trial court erred in allowing the state to introduce in evidence the binoculars used by Officer Gahagan to observe the drug sales. he argues that the state had failed to produce the binoculars in response to his pretrial motion for discovery.
On motion of defendant, the court shall order the district attorney to permit or authorize defendant to inspect or examine tangible objects which are within the possession, custody or control of the state and which are intended for use by the state as evidence at the trial. La.Code Crim.P. art. 718. The duty to disclose is a continuing one. La.Code Crim.P. art. 729.3. Where the defendant has been lulled into a misapprehension of the strength of the state's case by the failure to fully disclose, such a prejudice may constitute reversible error. However, the failure of the state to comply with the discovery procedure will not automatically command reversal. State v. Ray, 423 So.2d 1116 (La.1982). The defendant must show prejudice before this court will reverse his conviction. State v. James, 396 So.2d 1281 (La.1981). The court will review the record for a determination of whether any such prejudice which may have resulted from the non-compliance caused the trier of fact to reach the wrong conclusion. State v. Ray, supra.
At trial, the prosecutor explained that the binoculars were not listed in the discovery response because he had not intended to introduce them in evidence and had just obtained possession of them that morning. Upon the defendant's objection, the trial judge ascertained that the use of binoculars by Officer Gahagan had been made known throughout the proceedings. Indeed, the record reveals that Officer Gahagan's testimony at the preliminary examination on their use was no different from that at trial, and that their use was referred to at a later evidentiary hearing. Further, defendant concedes he was shown the binoculars on the morning before trial.
Under the circumstances, we find no prejudice to defendant resulting from the failure of the state to list the binoculars in the discovery response. With no surprise or prejudice, the trial judge did not abuse his discretion in allowing the binoculars in evidence.
Assignment of Error No. 3 is without merit.
Defendant contends the trial judge erred in allowing an expert witness for the state to respond to the prosecutor's question concerning the reason for increased illegal use of phenmetrazine.
The witness was qualified as an expert in the identification of phenmetrazine and its use both legally and illegally. Pretermitting the propriety of the question, the witness responded that he did not know why there is increased use. This response created no possible prejudice.
Assignment of Error No. 4 is without merit.
Defendant contends the trial judge erred in denying his motion for acquittal based on the state's failure to establish a proper chain of custody for the admission of the phenmetrazine.
The state presented Officer Gahagan, who identified the pills and matchbox he had seized at the time of defendant's arrest and the marked envelope in which he turned them over to the crime lab the next day. The chemist who performed the test at the crime lab testified that he received the envelope and stored it in the locked evidence locker. Officer Gahagan testified that he picked up the envelope from the crime lab and brought it to court.
To admit demonstrative evidence at trial, the...
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...Even a sentence within the prescribed statutory limit may violate a defendant's right against excessive punishment. State v. Sweeney, 443 So.2d 522 (La.1983). A sentence is constitutionally excessive if it is grossly out of proportion to the seriousness of the offense or is nothing more tha......
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