State v. Vince
| Citation | 305 So.2d 916 |
| Decision Date | 11 October 1974 |
| Docket Number | No. 54656,54656 |
| Parties | STATE of Louisiana v. Earl VINCE. |
| Court | Supreme Court of Louisiana |
A. J. Graffagnino, Metairie, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Sp. Ast. Dist. Atty., for plaintiff-appellee.
Defendant, Earl Anthony Vince, was indicted for aggravated rape. LSA-R.S. 14:42. After examination by a sanity commission, the court found him competent to stand trial. The trial jury found the defendant guilty as charged. Following a waiver of the statutory delay, the trial judge sentenced him to life imprisonment. Defendant appeals his conviction and sentence, relying upon 13 bills of exceptions.
Bills of Exceptions Nos. 1 and 2 were reserved when the court overruled the defendant's objections to the appointment of Dr. Sidney Montz and Dr. Elsa Tracey on the sanity commission. Defense counsel contends that Dr. Montz and Dr. Tracey were inexperienced in psychiatric matters and should not have been appointed.
The Louisiana Code of Criminal Procedure, Article 644, provides for the appointment of a sanity commission:
Selection of physicians to serve on a sanity commission rests within sound discretion of the trial judge. State v. Gray, 258 La. 852, 248 So.2d 313 (1971); State v. Marks, 252 La. 277, 211 So.2d 261; death sentence vacated 408 U.S. 933, 92 S.Ct. 2849, 33 L.Ed.2d 746 (1968); State v. Graves, 247 La. 683, 174 So.2d 118 (1965).
The codal article contains no requirement that the physicians appointed be psychiatrists. It is sufficient that they be licensed to practice medicine in Louisiana and that they have been in actual practice for not less than three years, consecutively, immediately preceding appointment. State v. Cloud, 246 La. 658, 166 So.2d 263 (1964).
The physicians, Dr. Montz and Dr. Tracey, met the requirements set forth in the Louisiana Code of Criminal Procedure. Hence, the trial judge did not abuse his discretion in appointing them to the commission.
Bills of Exceptions Nos. 1 and 2 are without merit.
This bill was reserved to the court's refusal to compel the state to answer certain questions in the defense motion for a bill of particulars. The State declined to answer the following questions:
'2. At what hour, on what date and at what place or address was defendant booked or charged with this offense.
The trial judge has considerable latitude in ruling upon requests in a motion for a bill of particulars. His ruling will not be disturbed absent a clear showing of abuse of descretion resulting in prejudice to the defendant. State v. Bailey, 261 La. 831, 261 So.2d 583 (1972); State v. Pratt, 255 La. 919, 233 So.2d 883 (1970); State v. Sheffield, 201 La. 1055, 10 So.2d 894 (1942).
The function of a bill of particulars is to inform the defendant more specifically of the nature of the charge against him. It cannot be used as a device to secure the details of the State's evidence or collateral information. LSA C.Cr.P. Art. 484; State v. Womack, La., 283 So.2d 708 (1973); 12 La.L.Rev. 457.
It is well established that the State has no obligation to furnish the defendant with information concerning witnesses it intends to use. State v. Browning, La., 290 So.2d 322 (1974); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967). Police booking information at the law enforcement agency likewise falls outside the scope of the bill of particulars.
The showing is insufficient to demonstrate an abuse of his discretion in refusing to require the State to answer the questions presented in the bill of particulars.
Bill No. 3 has no merit.
This bill was reserved when the trial court judge refused to suppress evidence obtained pursuant to a search warrant.
The defendant contends that the affidavit supporting the search warrant is inadequate to establish probable cause; hence, the physical evidence seized under the warrant should be suppressed. He relies upon Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
The decisions of the United States Supreme Court announce the principle that the showing must contain sufficient underlying facts and circumstances to enable the magistrate to review them and make the essential probable-cause determination. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); State v. Paciera, La., 290 So.2d 681 (1974).
In United States v. Ventresca, supra, the Court adopted a rule of reason in reviewing the showing of probable cause when it stated:
(380 U.S. p. 108, 85 S.Ct. p. 746, 13 L.Ed.2d p. 689).
The affidavit in the present case consists of four legal-sized sheets, single spaced, containing a lengthy description of an investigation leading to the identification of the defendant as the perpetrator of the crime. Without detailing the contents, it is evident that the affidavit is factual and contains adequate information to justify the issuance of a search warrant.
Bill of Exceptions No. 4 has no merit.
This bill of exceptions was reserved when the trial judge refused to grant a mistrial. Defense counsel argues that a mistrial should have been granted because the jury was allowed to see certain evidence irrelevant to the case, when the evidence clerk was removing certain objects pertinent to this trial from a cardboard box.
The trial judge did not err in denying the motion for a mistrial. There was no showing that the jurors actually saw the other evidence in the box. Moreover, even assuming that the jurors saw the other evidence, there was no showing that prejudice resulted. In the absence of prejudice, this Court will not disturb the conviction. C.Cr.P. art. 921. See also: State v. Giles, 253 La. 533, 218 So.2d 585 (1969).
Bill of Exceptions No. 5 lacks merit.
This bill was reserved when the trial judge overruled an objection to the admission of certain photographs into evidence. Defense counsel objected to the admission of the photographs on the ground that the proper foundation was not presented.
As a general rule, the courts will admit photographs into evidence when they are shown to be a correct representation of the subject and tend to shed light upon the transactions before the court. State v. Nunnery, La.,288 So.2d 624 (1974); State v. Jefferson, La., 284 So.2d 882 (1973); State v. Giles, supra.
Since the photographs in question fulfill these requirements, the trial judge properly admitted them into evidence.
This bill has no merit.
The defendant reserved Bill of Exceptions No. 7 to the overruling of his motion to bar testimony concerning a line-up identification on the ground the defendant had no attorney at the line-up.
The line-up to which objection was made was held at the New Orleans Police Department shortly after defendant's arrest and before his transfer to Jefferson Parish. No indictment had yet been filed against him.
In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the United States Supreme Court held that the counsel requirement was inapplicable to a line-up held before a person was indicted or formally charged. That decision is applicable here.
We conclude that Bill of Exceptions No. 7 is without merit.
The defendant reserved Bill of Exceptions No. 8 at the conclusion of the testimony of Harold Lambert, an investigator in the Jefferson Parish Coroner's office. Defense counsel objected to the testimony as hearsay and moved that it be stricken.
The motion to strike testimony is unknown to the criminal procedure of Louisiana. To bar testimony at the trial, a contemporaneous objection is required. LSA-C.Cr.P. Art. 841; State v. Isaac, 261 La. 487, 260 So.2d 302 (1972).
In the present case, defense counsel made an objection to a question addressed to the witness early in his testimony. This objection, however, was sustained. The present objection and motion to strike came at the conclusion of the witness' testimony.
The objection came too late to raise a reviewable evidentiary question. Nonetheless, we have examined the evidence and find no inadmissible hearsay.
Bill of Exceptions No. 8 lacks merit.
BILLS OF EXCEPTIONS NOS. 9, 10, and 11.
The defense reserved Bills of Exceptions Nos. 9 and 10 when, over objection, the trial court allowed Bonnie Viosca, a 13-year-old girl, and Josette Kopelman, a 15-year-old girl to testify as to incidents in which defendant raped them.
Bill No. 11 was...
To continue reading
Request your trial
-
State v. Sheppard
....... We have held that the selection of physicians to serve on a sanity commission rests within the sound discretion of the trial judge. State v. Vince, 305 So.2d 916 (La.1974). In the instant case, Dr. Silva did not appear as a witness from the coroner's office at trial. In fact, he testified at the sanity hearing that he had no connection with the investigation of the offense charged. We note, moreover, that defendant has made no showing in ......
-
State v. Nix
......denied, 385 U.S. 866, 87 S.Ct. 127, 17 L.Ed.2d 93 (1966). It does not require full pre-trial discovery, State v. Brown, 288 So.2d 339 (La.1974); nor is it designed to compel disclosure of the detailed evidence upon which the state will rely to prove its case. State v. Vince, 305 So.2d 916 (La.1974); State v. Rose, supra; State v. Bourg, supra; State v. Brown, supra. . Applying these standards to the rulings of the trial court in this case, as set forth above, we find no abuse of discretion in the denial of the information sought beyond that which was ......
-
State v. Hatcher
...... State v. Jackson, 352 So.2d 195 (La.1977); State v. Jones, 332 So.2d 466 (La.1976); State v. Price, 325 So.2d 780 (La.1976); State v. Vince, 305 So.2d 916 (La.1974); State v. Lawrence, 294 So.2d 476 (La.1974). . In order to be admissible the extraneous offense evidence must meet several tests: (1) there must be clear and convincing evidence of the commission of the other crimes and the defendant's connection therewith; ......
-
State v. May
...... Thus, we find no abuse of the trial court's discretion in refusing to compel the State to respond to defendant's request by furnishing him additional details and facts relative to his participation in the commission of the crime. State v. Alexander, 334 So.2d 388 (La.1976); State v. Vince, 305 So.2d 916 (La.1974). . ASSIGNMENT OF ERROR NO. 2 . Prior to trial, defendant filed a motion for the production of all exculpatory evidence and information under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The State disclaimed possession of ......