State v. BarnesState v. Barnes
The Vernon Parish Grand Jury indicted the defendant, Leonard Barnes, for distribution of heroin, a violation of
ASSIGNMENT OF ERROR NO. 1
ASSIGNMENT OF ERROR NO. 2
The defendant argues that the triаl court committed reversible error in denying the defendant‘s certificate for the attendance of an out-of-state witness. The trial court in its per curiam relative to summoning an out-of-state witness stated, “Although there is authority for summoning of an out of state witness at the expense of the State even, perhaps, in a case in which the defendant is not indigent, there has been no prior showing herein that the testimony of the witness sought to be subpoenaed would be matеrial or relevant.”
The trial court correctly relied upon our decision in State v. Chavers, La., 294 So.2d 489 (1974), cert. denied 419 U.S. 1111, 95 S.Ct. 786, 42 L.Ed.2d 808 (1975). A defendant is entitled to summon at State expense the attendance of witnesses from outside the state, provided he makes a prior showing that the testimony sought is relevant and material. State v. Jenkins, La., 340 So.2d 157 (1976); U. S. v. Joseph, 533 F.2d 282 (5th Cir. 1976), cert. denied 431 U.S. 905, 97 S.Ct. 1698, 52 L.Ed.2d 389 (1977). The statute itself requires that the defendant show that the witness is material.
“If a person in any state, which by its laws hаs made provision for commanding persons within its borders to attend and testify in criminal prosecutions or grand jury investigations commenced or about to commence in this state, as a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness shall be rеquired.” [Emphasis supplied.]
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3
The defendant argues that the prosecutor committed reversible error in referring to a taped confession of the defendant in the presence of the jury. After the second reference, the defense moved for a mistrial. This denial of the motion for mistrial forms the basis of this assignment of error.
Prior to the opening statement by the State, the prosecutor filed a notice of intent as required by
Later, during the trial, the prosecutor stated, “The State does not intend to introduce or make reference to this particular taped statement that we are referring to in the notice of intent.” The defense objected and moved for a mistrial. Counsel argued that this statement, made in the prеsence of the jury, prejudiced the defendant. The defendant contends that the jury surely concluded that the taped statements were inculpatory statements of the defendant.
A review of the record shows that there was no suggestion in the presence of the jury that these statements were made by the dеfendant. Likewise, there was no reference that the statements were confessions or inculpatory statements. Hence, no prejudice resulted.
ASSIGNMENT OF ERROR NO. 4
During the State‘s redirect examination of one of its witnesses, the prosecutor requested permission to bring all the witnesses into the courtroom to allow the witness to identify the State Trooper referred to in the witnesses’ testimony. Defense counsel objected, stating, “Your Honor, I object to this in-Court line-up. That‘s what it amounts to. In reverse. Your Honor, if— uh, I think I would agree if he would just look at the people and after they go back in, he can tell us which one it was.”
The triаl court followed the procedure suggested by defense counsel. The witnesses were brought in and then they filed out of the courtroom. After they left, the witness idеntified the trooper who was the subject of his testimony. Since there was no contemporaneous objection at trial to this procedure, this assignmеnt is without merit.
ASSIGNMENT OF ERROR NO. 5
At trial, the defendant testified in his own behalf. On direct examination, he testified that he had never dealt in heroin and that he was not a heroin addict. On crоss-examination, the prosecutor asked the defendant to roll up his sleeves. The defense objected, stating that if there were track marks on the dеfendant‘s arms, no foundation had been laid to show that they were the result of heroin addiction.
The trial court ruled that the defendant had to display his arms to the jury. The court noted that the State‘s request was aimed at impeaching the defendant‘s credibility. Each side is allowed to impeach the credibility of advеrse witnesses.
The defendant argues in brief that the effect of the display wаs to show that the defendant committed other crimes. The record shows that the defense counsel opened the door to questions concerning thе defendant‘s use of heroin on his direct examination. The State had a right to rebut the defendant‘s testimony on this subject.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 6
Finally, defendant asserts that his counsel was ineffective.
The claim of ineffective assistаnce of counsel is properly raised by a petition for a writ of habeas corpus in the district court. This enables the district judge in a proper cаse to order a full evidentiary hearing on the matter. State v. Collins, La., 350 So.2d 590 (1977); State v. Anthony, La., 347 So.2d 483 (1977); State v. Daniels, La., 346 So.2d 672 (1977); State v. Ross, La., 343 So.2d 722 (1977); State v. Mouton, La., 327 So.2d 413 (1976).
For the reasons assigned, the conviction and sentence are affirmed.
DIXON, J. concurs.
DENNIS, J., concurs, but disagrees with the implication that track marks are admissible on same terms as general physical characteristics.