State v. BrownState v. Brown
Earnest C. Brown was charged by bill of information with having illegally distributed a controlled dangerous substance, to-wit: heroin, to a person under the age of eighteen, in violation of
ASSIGNMENT OF ERROR NO. 1
On the day fixed for trial, but prior to commencement thereof, the state was allowed to amend the bill of information as to the date of the offense charged from March 28, 1974, to March 27, 1974. Defendant concedes in brief that the amendment was properly made under the provisions of
If it is shown, on motion of the dеfendant, that the defendant has been prejudiced in his defense on the merits by the defect, imperfection, omission, uncertainty, or variance, with respect to which an amendment is made, the court shall grant a continuance for a reasonable time. In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of thе prosecution. . . .
The official revision comments addressed to this article by its redactors demonstrate that the purpose of the continuance is to protect the defendant against surprise and prejudicе which might result from such an amendment. It is incumbent upon defendant to show in what respect his defense has been prejudiced by the amendment of the bill. State v. Royal, 255 La. 651, 232 So.2d 465 (1970).
In a case strikingly similar on its facts to the case at bar, we held that a mere аllegation by defendant that his defense would be affected by the amendment of the bill of information does not constitute such a showing of prejudice as to render the trial judge‘s refusal of a continuance reversible еrror. State v. Sharp, 321 So.2d 331 (La. 1975). In the instant case, as in Sharp, the defendant declined to respond to the trial
This assignment of error is without substance.
ASSIGNMENT OF ERROR NO. 2
After testimony of defense and prosecution witnesses at the hearing on the motion to suppress evidence, the trial judge ruled admissible the search warrant and suрporting affidavit over defendant‘s objection that he should be allowed to present further testimony. This ruling is assigned as error.
We note at the outset that the defendant failed to designate for inclusion in the record for appeal a full transcript of the hearing on the motion to suppress. However, the per curiam of the trial judge discloses that defendant had attempted to prove the nonexistence of a search warrant through testimony to the effect that a warrant was never shown to anyone at the time of the search. The per curiam also states that the state introduced testimony from the executing officers that a warrant had, in fаct, been issued prior to the search. Moreover, the record shows that the judge presiding at the hearing on the motion to suppress had himself signed the warrant sought to be admitted. Defendant does not dispute these facts.
The trial judge is accorded much discretion in determining the credibility of witnesses at a hearing on a motion to suppress evidence. State v. Jones, 308 So.2d 790 (La.1975). In the absence of any claim by defendant that the additional testimony he wished to prоduce was other than cumulative or repetitive, we cannot say that the trial judge abused his discretion in admitting the documents in evidence based on the executing officers’ testimony and his own knowledge of the warrant‘s issuance and without allowing further testimony. Hence, this assignment of error is without merit.
ASSIGNMENTS OF ERROR NOS. 5 AND 6
Defendant contends that the trial judge erred on two occasions by sustaining state objections to certain testimony on the ground of hearsay. Defendаnt argues that the presence of all out-of-court declarants and their availability for cross-examination operates to take an otherwise hearsay statement out of the rule against hearsay evidеnce announced in
There is no merit to this contention. In the first instance (Assignment of Error No. 5), Lonnie Everett, a state witness, had testified on direct examination that he was present at defendant Brown‘s home on March 27, 1974 when defendant injected heroin into Dewey Rivet‘s arm. On cross-examination, Everett admitted that he had also been shot with dope on this occasion. Shortly after he and Rivet had left defendant‘s home, they were stopped by the рolice. Everett was arrested and charged with possession of heroin. The witness signed a statement at the time of his arrest. He denied that the police made any threats to him if he did not testify against defendant either at thе time of his arrest or subsequently. Thereupon, defense counsel questioned the witness as to whether he was present when the police questioned River to which he relied in the affirmative. Everett was then questioned as to whаt he had heard the police tell Rivet. The state objected on the ground of hearsay. The objection was sustained by the court.
In the second instance (Assignment of Error No. 6), defendant had taken the stand in his own defense. Whilе admitting that Rivet and Everett had been at his house on the day in question, he denied administering heroin to them. He stated that they
Hearsay evidence is evidence of an unsworn, out-of-court statement made by a person other than the testifying witness and introduced for the truth of its content. State v. Hayes, 306 So.2d 705 (La.1975); State v. Jacobs, 281 So.2d 713 (La. 1973). Hearsay evidence is inadmissible except under one of the statutory or well-recognized exceptions.
The testimony attempted to be adduced in each instance was, in fact, evidence of unsworn, out-of-court statements made by persons (police officers) other than the testifying witnesses (Lonnie Everett and Earnest Brown). The reсord reflects that, when the trial judge ruled that the proposed testimony constituted hearsay, the defendant noted his disagreement with the ruling but failed to state any valid grounds for his position that the statements of the out-of-court declarants were admissible.
Assignments of Error Nos. 5 and 6 are without substance.
ASSIGNMENT OF ERROR NO. 7
Defendant assigns as error the trial judge‘s refusal to grant a new trial for the purpose of presenting newly discovered evidence designed to establish defendant‘s presence in class at the Elkins Institute in New Orleans from 8:00 a.m. to 1:00 p.m. on the date of the alleged crime (March 27, 1974).
New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered befоre or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
This court has consistently held that a motion for a new trial is properly rejeсted where the new evidence is of a nature that it should have been discovered before or during trial. State v. Rossi, 273 So.2d 265 (La.1973). The presence of the defendant in class at the Elkins Institute was a fact peculiarly within his own knowledge. Failure to produce witnesses to so testify cannot satisfy the showing of due diligence mandated by Code Crim.P. art. 851(3).
Furthermore, the defendant failed to demonstrate that had the evidence been offered in the original trial it would probably hаve changed the verdict of guilty. In considering a motion for new trial based on newly discovered evidence, the test to be employed is not simply whether another
The trial judge did not abuse his discretion in denying the motion for a new trial.
Assignment of Error No. 7 is without merit.
DECREE
For the reasons assigned, the conviction and sentence are affirmed.