State v. Thompson

• Decision Date: 02 May 1989
• Docket Number: No. CR85-900,CR85-900
• Citation: 544 So.2d 421
• Parties: STATE of Louisiana, Appellee, v. William G. THOMPSON, Appellant. 544 So.2d 421
• Court: Court of Appeal of Louisiana — District of US

Page 421

544 So.2d 421

STATE of Louisiana, Appellee, v. William G. THOMPSON, Appellant.

No. CR85-900.

544 So.2d 421

Court of Appeal of Louisiana Third Circuit.

May 2, 1989.

John Crochet, Public Defender, Lake Charles, for appellant.

Linda Fowler, Asst. Atty. Gen., Baton Rouge, for appellee.

Before DOMENGEAUX, FORET and YELVERTON, JJ.

FORET, Judge.

Defendant, William G. Thompson, was charged by bill of information with six counts of forgery, in violation of La.R.S. 14:72 and was found, by a unanimous jury of six, guilty as charged on all six counts. Thereafter, the trial judge sentenced him under the habitual felony offender statute to serve life imprisonment for the first count and ten years at hard labor consecutively for each of the remaining five counts of forgery. Thompson now appeals his conviction and sentence on all counts on the basis of twenty-eight assignments of error, thirteen of which are argued.

FACTS

In December of 1982, Thompson told Melvin Powell that he needed some girls to work for him answering the phone. Powell introduced Thompson to his niece, Cynthia Melton. Thompson told Cynthia the next day that he needed more girls to answer phone calls and to do bookkeeping, so Cynthia called up her friend, Diana O'Quinn. After Diana met Thompson at the Siesta Motel where he was staying, he asked both of them to cash some checks for him and they agreed.

Thompson gave Diana a check which he pulled out of his briefcase payable to her for $50. Cynthia and Diana drove to Sanford's Big Star grocery store in Sulphur, Louisiana, and cashed the check. Thompson then gave Diana $10 out of this money for cashing the check.

All three of them then drove to George Theriot's grocery store in Sulphur to cash another check. Thompson pulled another check out of his briefcase payable to Diana for $100. After Diana and Cynthia went into the store and cashed the check, Thompson gave Diana another $10 for cashing it.

They then drove to Misse's grocery store and Thompson gave Cynthia a check payable to her for $200. Cynthia cashed the check but this time received no money from Thompson. Next, they drove to Winn Dixie to cash another check payable to Cynthia for $100. Cynthia cashed it and Thompson gave her $10. They repeated this process again at a Wizard Fast Stop, where Cynthia cashed another check payable to her for $100, but received no money from Thompson. Finally, they drove to Johnny's Bar where Thompson cashed a check for $586.32. All six checks were cashed on the same day, drawn on the account of Texas Legal Research Center at the First Pasadena State Bank, and purportedly signed by one Susan Laza.

The next day, Cynthia went and picked up another two girls, Kathy and Kitty Ellender, because Thompson said he needed more girls. Thompson and the four girls drove to Baytown, Texas, in the defendant's three cars. A few days later, in Port Arthur, Texas, Thompson and Cynthia went to the Sabine Bank, where Thompson opened a commercial account under the name of the Texas Legal Research Center and put the counter checks into his briefcase. He also had Cynthia open a personal account.

Later that night after they opened the account at the Sabine Bank, Cynthia saw Thompson typing a check and signing the check protector writer. She also saw him sign the name of Susan Laza on the check. ¹ Thompson and Cynthia then drove to Sulphur where Thompson cashed two more checks; one for $586.32 at Johnny's Bar and another at Misse's.

By the end of December, Thompson was in Morgan City, Louisiana. He opened another commercial account under the name of Mid-Gulf Electric Company at the Morgan City Bank. Thompson was arrested in early January, 1983.

ASSIGNMENTS OF ERROR NOS. 1, 2, 3, 4, 5, 6, 7, 8, 10, 12,

19, 21, 25, 27 & 28

None of these assignments have been briefed or argued and are therefore considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982); State v. Jimmerson, 432 So.2d 1093 (La.App. 3 Cir.1983). See appendix for our disposition of defendant's motion to remand to brief some of these unbriefed assignments of error.

ASSIGNMENT OF ERROR NO. 9

In this assignment, Thompson argues that the trial court erred in denying his motion on November 12, 1984, for the transcript of the motions' hearing ² on August 3, 1984, as necessary for the proper preparation and conduct of the trial. He claims the transcript of the motion to suppress, in particular, was needed for the purposes of cross-examining and impeaching trial witnesses who were also present at the hearing. Thompson also claims that he was an indigent and that, conversely, a non-indigent defendant would have had the hearing transcribed. Therefore, he contends that the denial constituted unreasonable discrimination on the basis of indigency.

Thompson further argues that, as the transcript of the hearing on the motions would have eventually been made a part of the appellate record, there was no reason not to transcribe it.

The hearing on the motion for the transcript occurred the day before the trial. However, Thompson made no motion for continuance to have the transcript prepared. As the judge could find no authority that required it, he denied the motion.

The jurisprudence since Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), has established that the state must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense, unless other effective means were available which would afford him adequate review. Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971); State v. Johnson, 261 La. 620, 260 So.2d 645 (1972), cert. denied, 409 U.S. 1085, 93 S.Ct. 691, 34 L.Ed.2d 672 (1972). However, the state's failure to furnish the defendant with a transcript of a prior proceeding for the purpose of impeaching or contradicting the testimony of witnesses at trial will not be reversible error absent a showing of substantial prejudice. State v. Belton, 377 So.2d 1229 (La.1979).

The testimony of the witnesses at the hearing on the motion to suppress evidence on August 3, 1984, and at the trial was substantially the same and without any inconsistencies. Furthermore, the cross-examination of these witnesses during the trial was more thorough and complete than at the hearing. In State v. Allen, 276 So.2d 868 (La.1973) (on rehearing), the court found no prejudice from the denial of a transcript of a prior proceeding where there was no showing that the cross-examination and impeachment of contrary witnesses was impeded and no showing was made that there were actual discrepancies between the testimony at the hearing and at the trial. Likewise, no showing of any such prejudice was made in this case.

Moreover, the State had no advantage over Thompson since the prosecutor did not have a transcript of the August hearing. Finally, Thompson had the same defense counsel at both the August hearing and at trial. Therefore, no reversible error was committed by the trial court's denial of the motion. We find that this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 11

By this assignment, Thompson argues that the trial court erred in denying his motion on November 12, 1984, to recuse the judges of the Fourteenth Judicial District Court. Thus, due to a pending motion to recuse, he argues that the trial judge lacked the jurisdiction to conduct the trial.

Thompson filed a Section 1983 civil rights action against the judges of the Fourteenth Judicial District Court on November 9, 1984, in federal district court. The basis of the federal action was that his constitutional right to a preliminary examination had been unduly delayed and, thus, he was seeking dismissal of the charges against him. Thompson claims that because of this federal action, the judges of the Fourteenth Judicial District Court had too substantial a personal interest in the outcome of the case to preside over it. Thus, he contends the trial judge was required to refer the recusation motion to another judge for hearing. The trial judge denied the motion without referring it to another judge.

Article 671 sets forth the grounds for recusing a judge:

"In a criminal case a judge of any court, trial or appellate, shall be recused when he:

(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;

* * * * * *

(6) Would be unable, for any other reason, to conduct a fair and impartial trial."

"It is well settled that a trial judge is presumed to be impartial." State v. Edwards, 420 So.2d 663, 673 (La.1982). For the accused to be entitled to recusation of a trial judge on the grounds of bias, prejudice and personal interest, such interest must be of a substantial nature based on more than mere conclusory allegations. State v. Edwards, at 673; State v. Walton, 469 So.2d 1204 (La.App. 4 Cir.1985).

If a party files a written motion for recusation and there is a valid ground for recusation set forth in the motion, the judge shall either recuse himself or refer the motion for hearing to another judge or judge ad hoc. La.C.Cr.P. art. 674. If the motion does not set forth allegations of fact which state a statutory cause for recusation, the trial judge may deny the motion without referring it to another judge. State v. Littleton, 395 So.2d 730 (La.1981); State v. Beavers, 394 So.2d 1218 (La.1981).

In this case the trial judge had not presided over any of the prior hearings. He had no personal knowledge of Thompson's case prior to the hearing on November 12, 1984. A review of the record indicates that the learned trial judge was not only fair and impartial throughout the trial, but extremely tolerant of Thompson. The jury, moreover, was the ultimate decider of Thompson's guilt or innocence. The mere fact that a defendant has joined all of the judges in a judicial action in another court, of itself, does not show a sufficient bias, prejudice,...