SANDERS, Chief Justice.
The State indicted the defendants, David Lynn Alexander and Harry Junius Granger, with the armed robbery of Louis Gladu, a violation of LSA-R.S. 14:64.
The defendants appeal. They rely on eighteen assignments of error for reversal of their convictions and sentences. Alexander specifically abandons Assignment of Error No. 3 in brief. Granger failed to brief or argue his Assignments of Error Nos. 1, 2, and 3.
We adduce the following context facts:
Following a pre-arranged plan, the defendants and four accomplices drove in separate cars to the Hasty Mart, a convenience store, for the purpose of robbery. All six entered but separated in the store. The owner, Louis Gladu, came from behind the counter and spoke with Alexander. Alexander pulled a gun from his waistband and shot Mr. Gladu. As he fell, Alexander shot him again. Before leaving the store, they rifled the cash register.
ASSIGNMENT OF ERROR NO. 1 (ALEXANDER)
The defendant complains of the court's refusal to require the State to provide him with the substance of any oral inculpatory statement, as requested in his Bill of Particulars. He concedes that the law prohibits the defense from discovering oral confessions or inculpatory statements. However, he argues that the same factors requiring disclosure of written inculpatory statements should compel discovery of oral ones.
In State v. Watson, La., 301 So.2d 653 (1974), we rejected a similar contention. Therein we stated:
"* * *
We conclude that the trial judge properly refused the defendant pre-trial discovery of any oral inculpatory statements.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2 (ALEXANDER)
The defendant alleges that the trial court erroneously denied him pre-trial inspection or copies of confessions made by others implicated in the offense. He admits that Louisiana law precludes a defendant from discovering such statements. However, he urges us to adopt an exception to this rule when the State grants immunity to those who confessed or were implicated in the crime. Here, the State granted immunity to Herbert John Derouen, a co-indictee, and Mary Arceneaux, one implicated.
That the State granted a person charged with or implicated in the crime immunity is inconsequential to the pre-trial discovery rights of the defense. When that person testifies at trial (as they did here), they become witnesses, and under our jurisprudence, a defendant is also denied discovery or pre-trial inspection of a witness's statement. State v. Ball, La., 328 So.2d 81 (1976); State v. Rose, La., 271 So.2d 863 (1973); State v. Gray, La., 286 So.2d 644 (1973). See LSA-R.S. 44:3.
Thus, we conclude that the trial court's ruling which denied the defendant pre-trial access to confessions of others implicated in or charged with the offense was proper.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 4 (ALEXANDER)
ASSIGNMENT OF ERROR NO. 4 (GRANGER)
In the presence of the petit jury venire, but prior to any voir dire questioning, the following exchange occurred:
By this remark, the assistant district attorney announced the defendants and charges to be tried that day, and those to be severed and tried at a later date. This information was essential to the court's understanding of the proceedings, since the indictment charged six men with the offense to be tried, armed robbery.
The defendants contend that the assistant district attorney's statement of "remaining charges" is an impermissible reference to another crime under Louisiana Code of Criminal Procedure Article 770.
That article sets forth the requisites for a mandatory mistrial. It provides in pertinent part:
Louisiana Code of Criminal Procedure Article 774 confines the scope of argument "to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case." The State's remarks lie outside the ambit of Article 774. In our opinion, this comment was not argument: it was preliminary explanation, essential to orderly trial procedure. Neither do we find that the remark occurred during trial, since the State had not yet called the first prospective juror for examination. LSA-C.Cr.P. Art. 761. Thus, we hold that the very terms of Article 770, our mandatory mistrial provision, render it inapplicable to the instant case.
However, a mistrial may be ordered when prejudicial conduct in the courtroom makes a fair trial impossible. LSA-C.Cr.P. Art. 775. The court should declare a mistrial only when unnecessary prejudice results to the accused, since mistrial is a drastic remedy. State v. Governor, La., 331 So.2d 443 (1976), and the cases cited therein. This determination lies within the sound discretion of the trial judge and will not be disturbed absent an abuse of that discretion. State v. Haynes, La., 339 So.2d 328 (1976).
The defendants' allegation that the comment indicated that they were charged with other crimes is a strained interpretation of the comment. We believe that the phrase "and remaining charges" refers to the preceding phrase "the remaining defendants." Based on this interpretation, we conclude that the State did not comment upon the defendants' other crimes.
Moreover, assuming that it was a reference to other crimes, we do not believe any prejudice resulted. Throughout the trial, the State introduced evidence of the murder of Mr. Gladu during the armed robbery. As this murder and the armed robbery formed "one continuous transaction," evidence of the murder was admissible as res gestae. LSA-R.S. 15:448.
These assignments of error are without merit.
ASSIGNMENT OF ERROR NO. 5 (ALEXANDER)
ASSIGNMENT OF ERROR NO. 5 (GRANGER)
The defendants aver that the trial judge unduly restricted the voir dire examination of Mrs. Suire, a prospective juror.
During the State's questioning, Mrs. Suire stated that she could decide the case based solely on the evidence, that she would apply the law to the evidence as instructed, and that she could be a fair and honest juror. However, in responding to the defense's questions, she took a contrary position and stated that she could not be totally fair. Because of this discrepancy, the court questioned her. After some explanation by the judge, she answered that she could set aside all prior impressions, and could render an impartial verdict according to the law and evidence. When the judge denied the challenge for cause and tendered her to defense counsel, the following occurred:
When he continued his examination of Mrs. Suire, defense counsel immediately posed the following question to her:
The scope of voir dire examination lies within the sound discretion of the trial court. LSA-C.Cr.P. Art. 786. In State v. Scott, La., 307 So.2d 291 (1975), we stated:
In reviewing the scope of voir dire, this Court must consider the examination as a whole, or at least the entire record of examination of the prospective jurors during which defense contends such prejudicial curtailment occurred. State v. Roach, La., 338 So.2d 621 (1976).
The voir dire examination in the present case comprises nearly 750 pages and spans approximately 3½ volumes of testimony. The court, assistant district attorney, and defense counsel questioned Mrs. Suire as to her fairness as a juror. As the voluminous record indicates, the trial judge afforded defense wide latitude in his voir dire. The ruling complained of merely prohibited repetitious questions by defense counsel on the subject of a challenge which had previously been denied. We hold that the court's ruling was a reasonable limitation upon counsel's examination, and a permissible exercise of the court's discretion. See State v. Landry, La., 316 So.2d 738 (1975); State v. Square, 257 La. 743, 244 So.2d 200 (1971), vacated as to death sentence only, 408 U.S. 938, 92 S.Ct. 2871, 33 L.Ed.2d 760 (1972), compliance with the mandate, 263 La. 291, 268 So.2d 229 (1972).
In any event, despite the trial judge's ruling, counsel again asked Mrs. Suire about her fairness as a juror and received an answer indicating her impartiality. Under these circumstances, we find no prejudice. See State v. May, La., 339 So.2d 764 (1976).
These assignments of error are without merit.
ASSIGNMENT OF ERROR NO. 6 (ALEXANDER)
ASSIGNMENT OF ERROR NO. 6 (GRANGER)
The defendants challenge the trial court's ruling which sustained a State objection that Captain Horace Comeaux's testimony was inadmissible as opinion evidence.
The factual basis of Comeaux's testimony is as follows: Jerry Paul Francis told him that he perpetrated the armed robbery. However, Francis later recanted that confession. He explained that one of the defendant's family bribed him to admit to the crime.
The objection arose as follows:
A witness may not testify "as to any impression or opinion that he may have." LSA-R.S. 15:463.
The question posed solicited Comeaux's ideas on Francis' motive in confessing. Clearly, this is inadmissible as opinion testimony. State v. White, 178 La. 98, 150 So. 843 (1933); State v. Metoyer, 162 La. 287, 110 So. 424 (1926).
These assignments of error are without merit.
ASSIGNMENT OF ERROR NO. 7 (ALEXANDER)
ASSIGNMENT OF ERROR NO. 7 (GRANGER)
The defendants allege that the State's notice of its intention to use incriminating statements is deficient, pointing to the lack of details or a description of the statement.
The State described the statement as follows:
The State must advise the defendant of its intent to use a confession or inculpatory statement at trial. This notice must be in writing and tendered prior to the State's opening statement. LSA-C.Cr.P. Art. 768. In State v. Sneed, La., 316 So.2d 372 (1975), we interpreted the intent of Article 768 as follows:
". . . that the state must give sufficient notice of each confession or inculpatory statement it intends to use, with sufficient specificity as to date or occasion and as to persons to whom given as to afford adequate notice sufficient to permit the defendant a fair opportunity to meet the issue."
The notice need not include the details, description, or content of the statement. State v. Sneed, supra.
The notice given in the instant case is legally sufficient. It identified the person to whom Alexander made the statement, and the relevant date and location of the statement. Such information apprised him of the nature of the statement to enable him to establish a defense as to that issue.
Assuming arguendo, that the notice was unsatisfactory, we find that its inadequacies created no prejudice, for the inculpatory statement which was the subject of the notice was never admitted into evidence. See LSA-C.Cr.P. Art. 921.
These assignments of error are without merit.
ASSIGNMENT OF ERROR NO. 8 (ALEXANDER)
ASSIGNMENT OF ERROR NO. 8 (GRANGER)
The defendants contend that the State improperly introduced evidence of an inculpatory statement Alexander made to Andrus Wilson during its rebuttal. They allege that State v. Turner, La., 337 So.2d 455 (1976), requires the State to offer this evidence during its case-in-chief.
The State did not introduce Alexander's inculpatory statement during its case-in-chief. In presenting its case, the defendant Alexander testified that he did not rob the Hasty Mart or shoot Mr. Gladu. He also denied telling Wilson that he robbed and killed Mr. Gladu. However, he admitted
In rebuttal, the State called Wilson. He testified as follows:
Noting that Wilson had a "change of heart after coming into the courtroom," the State excused him.
The defendants' allegation that the State improperly introduced Alexander's inculpatory statement has no factual basis. As shown by Wilson's testimony above, the statement was never introduced into evidence. Thus, the argument lacks merit.
Assuming that Wilson testified as to the contents of the statement, we hold that the trial court properly admitted it. In State v. Turner, supra, we explained the relevant rules on the introduction of evidence in the State's rebuttal as follows:
Further, we recognized the following situation in our second footnote:
This Court concludes that this latter rule governs the admissibility of the inculpatory statement in this case. The defendant Alexander's denial of making the inculpatory statement and denial of any implication in the crime are facts which the State may rebut. State v. Brooks, La., 294 So.2d 503 (1974), and the cases cited therein. See State v. Watkins, La., 340 So.2d 235 (1976). At trial, the State offered and the court accepted Wilson's testimony for impeachment purposes only. The State introduced sufficient evidence during its case-in-chief to carry its burden of proof; it did not use this statement to prove its case. See State v. Hatter, La., 338 So.2d 100 (1976).
These assignments of error are without merit.
ASSIGNMENT OF ERROR NO. 9 (ALEXANDER)
ASSIGNMENT OF ERROR NO. 9 (GRANGER)
The defendants assert that the court erroneously sustained the State's objection to the introduction of 215 8" × 10" bank camera photographs as being irrelevant. These photographs depict Jerry Paul Francis and Preston Demouchet committing a bank robbery in Parks, Louisiana, two months after the instant robbery occurred. They argue that the photographs support their theory that Demouchet, Roy, and
We pretermit a conclusion as to the relevancy and the admissibility of these photographs. The record indicates that Captain Comeaux described the evidence reflected in the photographs to the jury: that Demouchet and Francis robbed a Parks bank. Hence, we hold that the testimony describing the facts depicted in the photographs cured any error, if any, in the court's exclusion of the photographs. LSA-C.Cr.P. Art. 921; State v. Cox, 218 La. 277, 49 So.2d 12 (1950); State v. Poe, 214 La. 606, 38 So.2d 359 (1948). See also State v. McGuffey, La., 301 So.2d 582 (1974).
These assignments of error are without merit.
ASSIGNMENT OF ERROR NO. 10 (ALEXANDER)
ASSIGNMENT OF ERROR NO. 10 (GRANGER)
The defendants complain of the court's ruling which sustained the State's objection to their offering a document styled "Disclosure by State." Prior to trial, the State apprised the defense of the history of the gun used in the armed robbery in this document.
When the judge sustained the State's objection, defense counsel stated "Yes, your Honor." [R. p. 1680.] Immediately thereafter, he offered another item into evidence.
We conclude that the defense has improperly presented these arguments and alleged error for our review. LSA-C.Cr.P. Art. 841; State v. Charles, La., 326 So.2d 335 (1976). In Charles, supra, we explained:
These assignments of error are without merit.
ASSIGNMENT OF ERROR NO. 11 (ALEXANDER)
ASSIGNMENT OF ERROR NO. 11 (GRANGER)
Both defendants filed motions for a new trial which the trial court overruled. They now challenge the denials.
Alexander's motion urges that the trial court's ruling on his objections prejudiced him, and alternatively, that the ends of justice demand a new trial. Since we have heretofore determined that his objections have no substance, we conclude that his motion based on these objections is without merit. In addition, we dismiss his alternative ground because the contention that the ends of justice require the granting of a new trial presents nothing for our review. State v. Clark, La., 325 So.2d 802 (1976). Thus, we hold that the trial judge properly denied his motion for a new trial.
In treating Granger's motion, we similarly find that the court correctly denied it. He alleges that the verdict is contrary to the law and evidence since no one positively
As we have previously decided that defense's objections are without merit, this ground in his motion is also without merit. His remaining allegations raise an evidentiary issue, that is, if the evidence supports the conviction. Such a contention does not raise a reviewable question of law on appeal unless there is a total lack of evidence to prove the crime or an essential element thereof. State v. Perkins, La., 337 So.2d 1145 (1976); State v. Williams, La., 310 So.2d 513 (1975). A review of the record convinces us that there is some evidence of the crime and its essential elements. Witnesses testified that the defendants planned the robbery of a store; that a customer paid cash for purchases shortly before the defendants entered; that the defendants entered the store and exited, running; that minutes after they fled, another customer discovered the cash register open containing only a few nickles and pennies, with the spring clips in the upright position.
These assignments of error are without merit.
For the reasons assigned, the convictions and sentences are affirmed.
DIXON, J., concurs.
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