State v. Tharp
| Decision Date | 08 March 1973 |
| Docket Number | No. 53026,53026 |
| Citation | 284 So.2d 536 |
| Parties | STATE of Louisiana v. Christine Mary THARP. |
| Court | Louisiana Supreme Court |
Pugh & Nelson, Sydney B. Nelson, Robert G. Pugh, Shreveport, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Special Asst. Atty. Gen., John A. Richardson, Dist. Atty., Fred C. Sexton, Jr., Asst. Dist. Atty., for plaintiff-appellee.
Defendant, Christine Mary Tharp, was convicted of a violation of La.R.S. 40:971, the distribution of a controlled dangerous substance, to wit: 3, 4 methylenedioxy-amphetamine (MDA). She was sentenced to pay a fine of $1,000.00 and costs or, in default thereof to serve six (6) months in the Parish Jail and, in addition, to be confined at hard labor for a period of one (1) year and committed to the Louisiana Department of Corrections. The trial court ordered that the execution of the one (1) year hard labor sentence be suspended and that the defendant be placed on supervised probation for a period of three (3) years. On this appeal, defendant has urged five (5) bills of exceptions.
The basis of the defendant's first bill of exceptions was the trial court's sustaining an objection by the prosecution that its witness, Detective Ruel B. Rives need not answer, on cross-examination, the incomplete question 'What law do you rely on that makes you immune from this offense, when you carry--'. The witness had admitted earlier that he had received the capsule of MDA from undercover officers and that he delivered it to the crime lab. Defense counsel urges that he needed the detective's answer to make his point that 'a mere delivery of a controlled dangerous substance from one party to another does not constitute a crime without the requisite intent or guilty knowledge.'
La.R.S. 40:970 provides, in pertinent part, that
'* * * it shall be unlawful for any person knowingly or intentionally to produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute or dispense, a controlled dangerous substance * * *'
Clearly, an essential element of the crime of distributing a controlled dangerous substance is guilty knowledge, State v. Smith, 257 La. 896, 244 So.2d 824 (1971), nevertheless, the trial judge has wide discretion in the discipline of his court to stop certain lines of questioning of a witness. La.R.S. 15:275. Although the trial judge did not so specify, it is apparent that the answer sought was irrelevant to the guilt or innocence of the accused. La.R.S. 15:441. Even if defense counsel's speculation as to the response he hoped to elicit from the detective was correct, the defendant was not prejudiced by the trial court's ruling. Neither was counsel prohibited from rephrasing his question or otherwise emphasizing his point, including having so advised the jury in his closing arguments, which he did. Further, the trial judge's general charges to the jury do, in fact, include the statement of law on specific criminal intent.
We find the ruling is supported by the law and was properly within the authority of the trial judge. The merit to this bill is lacking.
Bill of Exceptions No. 2 was taken when the trial court refused to allow defense counsel permission to look at Detective Rives' police report. Absent a showing that such report indicated that the statements therein were contrary to the sworn testimony of the officer, the trial court's ruling is in accord with this Court's jurisprudence, that police reports need not be disclosed to the defendant in connection with cross-examination of a police officer. State v. Franklin, 263 La. 344, 268 So.2d 249 (1972); See also State v. Barnes, 257 La. 1017, 245 So.2d 159 (1971); State v. Martin, 250 La. 705, 198 So.2d 897 (1967).
This bill lacks merit.
Bill of Exceptions No. 3 was taken to the trial court's denial of a Motion for an Acquittal. This procedural device (Motion for A Directed Verdict) is unavailable in a Louisiana criminal trial before a jury. State v. Williams, 258 La. 801, 248 So.2d 295 (1971); State v. Hudson, 253 La. 992, 221 So.2d 484 (1969).
Bill of Exceptions No. 3 is without merit.
Alleging that the question was 'irrelevant, immaterial and hearsay', defense counsel reserved Bill of Exceptions No. 4 when the trial judge permitted the state to question its rebuttal witness on redirect examination thus:
'Q. (Mr. Sexton, Asst. District Attorney): Do you recall what the substance of our conversation was when I contacted you about coming to testify?
A. (Gordon Freeman): Yes, I do.
Q. Would you tell what it was?
A. When you first contacted me about this, you asked me if I had had a conversation with Chris Tharp, and I told you I had. You asked me the content of this conversation, and I told you what I have told the Court here today.'
Earlier, defense counsel, after an extensive cross-examination of this witness, had elicited testimony that the witness had been contacted by the Assistant District Attorney who in fact had previously handled charges against Mr. Freeman. As defense counsel had originally opened the question of Mr. Freeman's 'indebtedness' to the police, it was not improper for the prosecution to be permitted to try to counteract any mistaken impression of undue influence by the prosecutor that the jurors might have been given.
Bill of Exceptions No. 4 is without merit.
Defendant urges in his Bill of Exceptions No. 5 that the failure of the trial court to provide a complete transcript of the proceedings which dealt directly with his Motion for a Mistrial (on the grounds that a prosecution witness had intimidated defense witnesses, thus preventing the defendant a fair trial) constituted reversible error. Counsel argues absent the transcript of his discussion in taking the bill, this Court is precluded a full review of his complaint.
The trial court's Per Curiam on this bill sets forth the facts behind this allegation:
'The facts are that after approaching the bench, defense counsel stated to the Court that one of the prosecution witnesses, a detective, had made statements to a defense witness which indicated that he had a file on the defense witness and would probably file charges on her. Defense counsel then asked to put on evidence out of the presence of the jury to establish those facts. The Court then asked defense counsel whether or not the detective had made any further statements to the witness and the defense counsel replied 'No'. The Court then asked defense counsel if his witness was still present and intended to testify. Defense counsel replied 'Yes'.
Having heard nothing that would prevent defendant from presenting the testimony of the witness and obtaining a fair trial, I then refused to stop the trial and allow the defense to present evidence to establish the above facts out of the presence of the jury. Defendant moved for a mistrial. The Court then denied the motions, an objection was made and a bill reserved. Shortly after this motion for a mistrial was made defense counsel learned of the fact that the above happenings were not taken down by the Court Reporter. The typed transcript Page 91, lines 7--8, contains the statement by defense counsel that--
The Court is constrained to agree with the trial judge and the state's answer that
Inasmuch as the trial judge gave defense counsel an opportunity to have made a record of the colloquy at the bench, but in fact he did not do so, we can see no legal basis for the relief sought. Evidence can be brought before this Court only by incorporating it in a bill of exceptions. La.C.Cr.P. art. 844. Further, there is no contention that the trial court's per curiam does not correctly set forth the facts relied upon.
This final bill of exceptions lacks merit.
For the reasons assigned, the conviction and sentence are affirmed.
BARHAM, J., dissents and assigns reasons.
Under the law and the evidence attached to the bills of exceptions in this case, at best it can be said that the conviction rests upon a tenuous foundation. However, I particularly dissent from the majority's conclusions in regard to Bills of Exceptions Nos. 2 and 3.
While the State's witness Detective Rives was on the stand, he referred to a written report in his hand to refresh his memory as he testified. When the defense asked for a copy of the report, the State objected, the objection was sustained, and the defendant reserved Bill No. 2, urging that she was entitled to read and review the report and use it to determine how reliable the report was as a means for refreshing the memory of the witness. This bill of exceptions is good. See my dissent in State v. Holloway, No. 52658 on the docket of this court, handed down February 19, 1973, La., 274 So.2d 699.
I also dissent from the holding of the majority under Bill of Exceptions No. 3 that the motion for directed verdict is...
To continue reading
Request your trial
-
State v. Babin
...recorded'. The witness's testimony, in effect, swears that the writing is an accurate record of his past recollection. State v. Tharp, 284 So.2d 536 (La.1973); State v. Grayson, 225 La. 142, 72 So.2d 457, 459 (1954); State v. Smith, 144 La. 801, 81 So. 320 (1919); Bullard v. Wilson, 5 Mart.......
-
State v. Vail
...under the former murder statute. In State v. Franklin , 263 La. 344, 268 So.2d 249 (1972), overruled on other grounds by State v. Tharp , 284 So.2d 536 (La.1973), the defendant was convicted of murder and sentenced to death. However, while on appeal, Furman was decided. The Franklin court s......
-
State v. Tauzier
...rather than present memory refreshed, the trial judge should require production of the report for defense inspection. State v. Tharp, 284 So.2d 536 (La.1973); State v. Foret, 315 So.2d 278 (La.1975). The same ruling should follow where it is shown that a witness has referred to his report o......
-
State v. Stephenson
...Gilbert, 286 So.2d 345 (La.1973); State v. Ferdinand, 285 So.2d 530 (La.1973); State v. Triplett, 285 So.2d 532 (La.1973); State v. Tharp, 284 So.2d 536 (La.1973); State v. Lee, 281 So.2d 123 (La.1973); State v. Douglas, 278 So.2d 485 (La.1973); State v. Dimopoullas, 260 La. 874, 257 So.2d ......