*1 256 So.2d
STATE Louisiana
Dan E. DOTSON. 50828.
No.
March 1971. Rehearing 13, 1971.
On Dec. Rehearing
Further Denied Jan. *3 Brown, City,
Henry Jr., Bossier Newton defendant-appellant. for Gremillion, Gen., Harry Atty. F.P. Jack Gen., Howard, B. Atty. Asst. H. John Rogers M. Prest- Benton, Jr., Atty., Disk Marcantel, Dist. ridge, Atty., plaintiff-ap- JDC, for Bernard N. 30th Asst. Dist. Ryder, Atty., Alfred Dist. JDC, 31st R. pellee. Garrison, Atty., Atty., 33rd Dist. JDC, Jim Gremillion, Atty. (Harry Gen. P. F. Jack Parish, counsel), join Orleans Korns, Gen., Howard, Atty. Louise Asst. H. identity in issue of disclosure of informer’s Orleans, Atty., Parish of Asst. Dist. John Exception Bill of No. 2. R. Richardson, Atty., JDC, Hal 1st Dist. A. Ragan D. Henderson, Atty., JDC, 2nd Dist. DIXON, Justice. Madden, Atty., JDC, Robert W. Dist. 3rd Dan On November 1969 defendant Rudolph Kostelka, Atty., JDC, E. Dist. 4th E. passenger green Dotson in a was a JDC, Thompson McIntyre, Atty., Dist. 5th Shreveport traveling automobile Clarke, Atty., JDC, C.W. L. Dist. 6th City. Bossier Lt. of the Bossier Bolton Falkenheiner, Atty., JDC, Sam Dist. 7th City Department Police a tele- received Wells, Atty., JDC, Edwin O. Dist. 8th L. phone call informer from a confidential Ware, Ronald C. Atty., JDC, Dist. 9th green advising occupants of a Martin, Atty., JDC, Dist. 10th Reuel J. automobile, City by traveling to Bossier Boone, Atty., JDC, Dist. 11th Charles A. specified route, possessed narcotics. Riddle, Atty., JDC, Jr., Dist. 12th L. O. Fusilier, Atty., JDC, Frank T. Dist. 13th proceeded Shreveport- Bolton to the Lt. Salter, Jr., Atty., JDC, Bertrand Dist. 14th Bridge Barksdale and radioed for addition- DeBlanc, Atty., JDC, Knowles Dist. 15th police suspect al vehicles. car When Tucker, Atty., JDC, M. 16th Wilmore D.ist. Bolton, bridge, crossed Lt. aided Broussard, JDC, Jr., Atty., Dist. 17th J. police vehicles, stopped the other the car Cashio, Atty., JDC, Samuel C. Dist. 18th occupants its search ordered out. No Pitcher, Atty., Sargent Jr., JDC, Dist. 19th However, then. the oc- conducted Kilbourne, Atty., Richard H. Dist. 20th defendant, cupants, including arrested were Yokum, Atty., JDC, 21st Leonard E. Dist. possession narcotics. Irwin, JDC, Atty., 22nd Woodrow W. Dist. Talbot, defendant, JDC, Atty., along Aubert D. 23rd Dist. Lt. Bolton took JDC, vehicle, police Langridge, Atty., suspect Frank into H. Dist. 24th driver Perez, headquarters. JDC, Jr., Atty., Another officer drove Leander H. Dist. Benton, Atty., suspect The driver of JDC, Jr., B. vehicle in. 25th Dist. *4 John Fontenot, his JDC, Atty., green consented to a search of 26th 27th vehicle Y. Dist. J. Mouser, car, JDC, Atty., no narcotics therein. Holmes Dist. 28th which revealed charged JDC, Barre, However, with Atty., 29th the driver was Melvin P. Dist. III, Atty., having JDC, a defective muffler. Pegues, Dist. William C. (cid:127)479 4gO attempted question' to Bolton de- Bill Exception Lt. of No. 1 was reserved *fendant, but to Dotson refused waive when the trial court overruled defendant’s right to remain silent. Lt. Bolton then suppress motion to evidence taken from his and, person. filled an car, out affidavit based' on police stopped arrest- affidavit, a search warrant defendant, was issued ed later obtained a search war- city city rant, of court of proceeded and then to search City. of person Bossier Lt. Bolton then searched defendant, of all on the basis of person telephone of defendant and took from call an inform- from undisclosed clothing allegedly a matchbox .defendant’s ant. The question presented by essential marijuana. ..containing Defendant was suppress motion to was whether the charged possession with police of narcotics. probable had cause either to obtain the search warrant conduct the or to search suppress, Defendant filed a motion to validity without a Anent warrant. which was overruled. At his de- procedure used, the United States fendant asserted his innocence and claim- Supreme spoken. Court has the Court Said jury that he had been “framed.” The 'éd Aguilar v. Texas: guilty possession found the defendant of narcotics, charged. appeal of This peti- “Here the ‘mere conclusion’ that taken. possessed tioner not even narcotics was himself; that that of the affiant it was law, alleges Defendant five errors of an unidentified The af- informant. excep- corresponding to his five bills only fidavit here not ‘contains no af- (1) suppress tions: failure to evidence allegation affiant firmative defendant; person (2) taken spoke personal knowledge with failure disclose the name of the con- therein,’ it matters contained does not informant; (3) introduction of .fidential allegation’ even contain an ‘affirmative evidence which had not been identified unidentified affiant’s source properly substantially nor shown be in ‘spoke personal knowledge.’ For 'the same condition as at time appears, merely all that here source 'alleged transaction; question- criminal (4) suspected, believed concluded ing concerning prior misconduct pos- petitioner’s there were narcotics referring introduction certainly magistrate session. The here prior arrest'; a' (5) outside association ‘judge per- could for himself the * ** juryman 'of a primary with the state wit- suasiveness of the facts relied on ness credibility' whose probable necessarily was at issúe.' These to show cause.’ He specifications accepted will be* question’ treated'in order. ‘without the inform- *5 .481 482 ‘suspicion,’ ant’s ‘belief’ ‘mere con- a result of the search warrant was in- petitioner’s clusion.’ admissible in trial. judgment “The may of Texas of
“Although an Court affidavit be based on Appeals Criminal hearsay is reversed and the information and need not re- case remanded for proceedings in- personal not flect the of direct observations opinion.” States, Aguilar consistent with this affiant, v. United 362 Jones Texas, 113-116, 108, 257, 697, v. 378 725, U.S. 84 U.S. 4 L.Ed.2d 80 S.Ct. 1509, (foot- S.Ct. 12 (1964) L.Ed.2d 723 magistrate must be informed of some notes omitted). of underlying circumstances from which the informant concluded case, a Wells, Louisiana v. State narcotics were claimed where he Supreme Hamiter of the of Court Justice were, underlying and some cir- of Louisiana wrote: cumstances from which the officer con- rulings “Under the of the United States informant, cluded that identity whose Supreme Court Nathanson v. United disclosed, need not Rugendorf be see v. States, 41, 11, 290 U.S. 54 S.Ct. 78 States, 528, United 376 U.S. 84 S.Ct. Aguilar Texas, 159 and L.Ed. v. 378 U.S. 825, 887, 11 L.Ed.2d was ‘credible’ or 108, 1509, 723, 84 S.Ct. 12 L.Ed.2d such Otherwise, his information ‘reliable.’ an affidavit, based on mere affirmance ‘the inferences from the facts which lead of suspicion, belief or defec- patently complaint’ ‘by will be not drawn and, therefore, tive the warrant issued a magistrate,’ neutral and detached pursuant illegal thereto is and invalid. instead, requires, the Constitution but police “But even aside ‘engaged rulings these officer the often same competitive result would enterprise ferreting of reached under the out express crime,’ States, language Giordenello of Article v. United 357 162 of our 480, own 1245, Code 78 U.S. S.Ct. 2 L.Ed.2d Criminal Procedure which 1503 * * *; States, pertinently provides: v. United Johnson 10, 436, U.S. 68 S.Ct. L.Ed. “ ‘A may search only upon warrant issue * * *, or, case, as in an un- probable cause established to the satis- identified informant. judge, by faction of affidavit conclude, therefore, “We person, reciting credible the search es- facts warrant tablishing should have been issued be- the cause issuance for cause the provide Wells, affidavit did not -a warrant.”’ v. State La. finding sufficient probable basis (1969) (emphasis So.2d cause and that original). the evidence obtained as
48 3
that the search
case,
be established
was
must
the affidavit
In the instant
Presented
incident to a lawful arrest.
why
inform-
demonstrated
Lt. Bolton
questions:
for resolution are two
to us
did not
but
ant
considered reliable
so,
If
arrest
lawful?
upon Was
any
underlying
facts
recite
incidental
search of defendant’s residence
suspicion.
which the informant based
James, 246
it?”
La.
in this
issued
search warrant
*6
(1964).
who informed him Pagnotta’s curiam of trial judge: retired, attorney jury was and the defense “ ‘This Court has held on too occasions then stated into the record: numerous to mention that the defendant allege the stuff “The defendant will this, is not entitled in a situation such as him, marijuana, was found on the name There informant. planted there the informant. And allegation here [no] defense, part it will be direct through his any counsel through tes- necessary place on the this informer timony that the confidential informant *7 credibility and at- and attack his stand had framed planted him or had the evi- fact, plant whether or not he did in tack apartment, dence in his or any had done is stuff think this an ex- the on him. I other act require revealing which would ception the disclosure rule.” * ** identity. his Pagnot- State v. ta, 253 La. Although the informer So.2d identity (1969). the of Bolton, the court was well known Lt. case, course, In the instant requi- of the adversely Exception ruled to defendant. allegation site was made that the confiden- returned; reserved; jury the was the was tial informant had framed the defendant. trial resumed. Directly point in is the United States Su- preme case Court of v. United Roviaro police it held that the has been While States, in Mr. which Burton wrote: Justice normally privileged to from are withhold informer, identity an the of an accused “Petitioner contends that the court gen- The privilege right this is not in the upholding erred of absolute. Gov- exceptions. identity its in- eral rule has In the ernment of to withhold the John case, argues an stant one defendant’s contentions He that Doe was active of Doe. activity charged participant illegal trial was that had been “framed” he therefore, that, probable In these
and
Government
cause.
cases
Gov-
identity,
required
his
his
could not withhold
has been
to disclose
ernment
whereabouts,
identity
alive
whether he was
unless there
and
of
informant
or dead at the
time of trial.
[*]
[*]
[*]
sufficient evidence
apart
from
his
Roviaro
confidential communication.”
in-
usually referred to as
is
“What
States,
53, 59-61,
United
353 U.S.
reality
the Gov-
privilege
former’s
(1957) (foot-
v. in which Chief O’Niell Bill of Exception Justice No. 4 was reserved wrote: Supreme Louisiana Court State, when the objection, over defense permitted was to interrogate defendant curiam, per according judge, “The his to prior possession about marijuana, of and ruling largely upon the fact rested prosecution’s when the chief was witness testimony, Templet, gave in his that permitted testify to previous that on a description steer detailed which of occasion he had arrested for pasture missing he said was from his possession marijuana. of Evidence of was found several afterwards months prior possession, course, is admissi- pasture in neighboring of the de- the n purpose ble showing guilty fendant, by for and was taken the sheriff knozvledge or intent. Louisiana Revised Templet. and delivered to But that tes- 15:445, case, Statutes In the instant timony supply did not the omission of now claimed in by court attorney prosecuting to offer testi- present attorney district that the informa- proof monial that the steer which was tion in fact legiti- was elicited truck, inspected and which was purpose mate showing guilty knowl- jury, was the same steer intent, edge pur- rather "than for the pasture taken from the defendant’s pose impeachment. However, read- the sheriff Templet. and delivered to ing transcript of the discloses proof Without some such the iden- attorney former district who handled tity of the steer in the he truck case the trial court did not mention evidence; the judge admissible alleged possession prior open- in his complied request should have ing Rather, during statement. he stated attorneys for the defendant jurors any simply laying the trial: disregard instruct “I’m the founda- im- pression they might impeachment tion for have received of—.” inspection jury from their the steer in the retired. Defense coun- then was Foret, Attorney truck.” State at- La. sel asked: “Is the- District (1941). tempting prior So. introduce evidence .of *9 ** witness, *; and no he of the defendant?” whether he or conviction
arrest
not,
replied:
“I have
attorney
defendant or
can be asked on cross-
The district
of
presence
or not he has ever
In the
examination whether
no such intention.”
only
attorney
arrested,
asked
then
been indicted or
can
jury,
the
the district
conviction,
deny
the
questioned
on
and as
that
“You
defendant:
actually
you
provided herein.”
day
August,
of
28th
that
marijuana? At
this address
used
Comment, Admissibility of Evi-
See also
people
you deny that other
“Do
I —.”
dence
Prior
in Louisiana Crim-
of
Arrests
Later,
Bolton
Lt.
it?”
when
there used
Trials,
(1959).
inal
This
19 La.L.Rev.
attorney
stand,
again
the district
took
court has no alternative other
than
questioned the
as follows:
officer
he
that
hold that Lt. Bolton’s
possession of
had arrested defendant
for
you
previously
Bolton,
“Q. Mr.
have
previous
marijuana
occasion was
on
Danny
you
Dot-
that
testified
knew
highly prejudicial
jury,
for the
and ac-
sight.”
son
cordingly
Exception
that Bill of
No. 4
sir.
“A. Yes
well taken.
He has
of
“Q.
22nd November.
On
Exception
reserved
Bill of
No. 5 was
previ-
you
that
had
testified
have
day
of
after lunch on
when
Is this
ous contact with him.
for
motion
trial court denied defendant’s
?
correct
undisputed that the State’s
a mistrial.
It is
day
at
Yes sir
When I arrested main
ate
“A.
I have.
witnesses
lunch
jurors. one
him —.”
same table with
of
Village
Ben-
prosecution argues that the
then was allowed to tes-
The lieutenant
restaurant,
there
just
has
and that
ton
one
tify
Danny
a previous
that on
occasion
police-
in the record
no evidence
may
where others
Dotson was
a house
juror dur-
men discussed
case with
marijuana. Defendant
using
been
have
ing lunch.
alleged prior
never was convicted
applicable to
there is no rule
While
possession.
pre-
instant
have
circumstances
that would
pro-
Revisecj
15:495
Louisiana
Statutes
eating at
cluded the witnesses
vides :
(being
jurors
as the
same restaurant
Village crime,
only
full
restaurant
but
“Evidence of conviction of
Parish
arrest,
Bossier
Benton
prosecution,
wherein
indictment or
proprie-
it strains
located),
im-
purpose
Courthouse
is admissible for
witness,
at the same
ty
to eat
credibility
for the witnesses
peaching the
Conceding,
table
the triers
of fact.
Said the
Supreme
United States
Court
arguendo,
their
confined
dis-
in the case of Turner v. Louisiana:
matters,
cussions to
the fact
innocuous
“The
principal
two
witnesses
guilt
remains that the issue of
the case
prosecution at
the trial were Vincent
credibility
depended upon
bar
at
Rispone and Hulon
Both
Simmons.
Lt.
The lieutenant had testified
Bolton.
deputy
were
Tangipahoa
sheriffs of
from the
that he
the matchbox
removed
* * *
Parish.
(where, obvi-
pocket
defendant’s trouser
*10
“The
jury
members of the
were se-
ously,
someone
it
be difficult
would
questered in accordance with Louisiana
knowledge
plant
to
the
evidence without
during
law
the course
the
and
Dotson,
Defendant,
of defendant).
Dan
‘placed
were
in charge of the Sheriff’
hand,
that Lt.
on
testified
the other
had
judge.
the trial
practice,
this
the
from his
Bolton removed
matchbox
jurors
meant that
continuously
were
concededly,
pocket
(where,
coat
would
in
company
deputy
sheriffs of
plant
be
evidence
easier for someone to
Tangipahoa Parish during the three
defendant). The
knowledge
without the
days that the trial
deputies
lasted. The
that
had
success of
claim
he
defendant’s
jurors
drove
to a restaurant for each
depended
large
in
mea-
been framed thus
meal, and
lodgings
night.
to their
each
to
upon
jurors
sure
chose
whether
deputies
them,
The
ate with
conversed
account, that the mari-
believe Lt. Bolton’s
with them, and did errands for them.
juana
in
left trous-
was found
defendant’s
pocket,
er
chose to
jurors
or whether the
deputy
“Two
sheriffs who were
story, that
believe defendant Dan Dotson’s
in
close
this
and continual association
his
marijuana
planted
in
had been
jurors
with the
Rispone
were Vincent
had
pocket (which
coat
coat he claimed he
and Hulon Simmons. Turner’s counsel
intermittently
put
taken off
at
and
on
Rispone
moved for a mistrial when
tes-
day
day
during
various times
prosecution,
tified as a witness for the
arrest).
of his
and made the same motion when Sim-
* * *
testified.
mons
credibility
of Lt. Bolton thus was
squarely
Eating together
in
in
casting
judgment
issue.
allows
its
“While thus
law,
juror
and the
to establish a
terms of state
witness
[Louisiana]
relationship
juror
close
affirmance of Turner’s
at a time when the
court’s
conviction
necessarily
rejected his claim
impartial.
should remain
close as-
Such
key
prosecution witness
conduct of the
had violated
sociation of a
hold oth-
juror
permitted.
Amendment.
not
Fourteenth
We
should
HAMLIN,
(dissenting).
to the federal con-
respect
erwise with
Justice
issue,
accordingly
and
re-
stitutional
my
ruling
It is
view that the
on Bill of
judgment
verse the
before us.
Exceptions
going
open
to
No.
door
“ * * *
have undermined
It would
compel
identity
disclosure of
of an
by jury
guarantees of trial
the basic
every
informer
time defense counsel makes
permit
an association
framed,
this kind of
a statement
that his client was
key prose-
jurors
two
any proof
between the
offering
without
or circumstance
deputy
statement,
were not
support
cution witnesses who
in
of such
as counsel has
role that Simmons
sheriffs. But
done in this
case.
statement
deputies made
played as
Rispone
Pagnotta,
770,
v.
69,
253 La.
220 So.2d
prejudicial
more
the association even
“there is no allegation
the defendant
* * *
depended
fate
through
And Turner’s
through any
counsel or
testi-
jury
mony
upon
confidence
how much
agent
the confidential
had
”**
Turner
placed in
witnesses.”
framed
these two
him
was not
intended
470,
468,
466, 467,
Louisiana,
open
379 U.S.
door for disclosure of an in-
546, 547, 548,
identity
former’s
85 S.Ct.
the majority
opinion
origi-
(emphasis in
(1965)
L.Ed.2d 424
has ruled.
I
Nor do believe that the facts
omitted).
(footnotes
nal)
States,
case of Roviaro v. United
53, 59-61,
U.S.
77 S.Ct.
Bill of
No.
has
case;
this
rights
substantial
of
ac-
Louisiana, 379
posed
by citing
of
Turner v.
were not
prejudiced,
cused
466, 467, 468, 470, 474,
and there was
85 S.Ct.
U.S.
no violation of a
statutory
constitutional or
(1965). The facts
lar. I believe that herein the rights of the be- ruling for on this bill reason public have put been exaggerated behind propriety the witnesses “it strains cause judicial concern rights over the ac- to eat same table with triers at the cused. It is for people difficult to under- short, it why defendant, fact” in small restaurant. stand found unchal- lengeably guilty by what con- upon opinion jury, an as to pam- based should pered inconsequential because some er- propriety. This is a reflection on stitutes ror by any which not did diminish at the common integrity parties seated standard fairness of his trial. table; integrity lack borne their contrary, it is out the record. On the C.Cr.P., The true test under Art. presumed who jurors, that the officers and supra, legal is and be: should Not the tech- oath, duty. were under their do would involved, nicalities but whether rules defendant a fair trial. As have denied the opinion I am further that the ac stated, I defendant had believe the above cused received a fair a fair trial. majority opinion set forth in errors *12 provided were not such as Art. adopt ruling a technical I am reluctant to 921, C.Cr.P., -there guilty unless which reads as follows: of a defendant favor up dictionary it “gossamer” I looked ruling the case under previous that fits
is a meanings, fol- not find and found that has as glove. a I do two like consideration here; not desire to : I do lows that such exists tech- devastating effect of contribute to air floating A film of cobwebs 1. crim- enforcement of
nical decisions in calm clear weather. and nation. justice in this state inal Any gauzelike fabric. the United States Su- I believe respectfully I dissent. devastating ef- realizing preme Court on the its decisions enforce- fect of recent REHEARING ON because, in justice, Dutton ment criminal 210, 74, Evans, S.Ct. 400 U.S. SANDERS, Justice. on De- 213, by that Court decided L.Ed.2d rehearing criminal granted a in this We say: 15, 1970, it had this cember force- prosecution of the State’s because er- allegations that our decision ful Snyder v. years ago, in “Almost and, seriously grounded, roneous would Massachusetts, 54 S.Ct. 291 U.S. rehearing, On hamper law enforcement. wrote Cardozo Mr. 78 L.Ed. Justice attorneys throughout the State the district refusing to set for this Court opinion an seeking modifica- joined scholarly in a brief because a criminal conviction aside state requires disclosure holding tion of the right of con- claimed denial of of the inform- identity the confidential closing frontation. The words ant. repeating here: opinion worth are
“ may briefly summarized. facts be danger that the criminal ‘There is 22, 1969, Bolton of Lt. O. G. contempt— On November brought into will be law Department City received Police great Bossier even touch that discredit will inform- telephone from confidential a call a by Fourteenth assured immunities reliable, occupants ant, that the be known to possibilities gossamer Amendment —if traveling from green of a automobile are to prejudice to City possessed nar- Shreveport to Bossier nullify pronounced sentence cotics. jurisdiction in competent court of law, and set obedience local Shreveport- proceeded Lt. Bolton guilty 291 U.S. 54 S.Ct. free.’ route, and Bridge, on the travel Barksdale
338.” police When vehicles. called for additional bridge, Lt. Bol- the automobile crossed In order to sure about what Justice the car stopped officers ton and other meant the use of the word Cardozo *13 Dotson, defendant, arrested Dan E. (Bill stances contained in it. of Ex- possession ceptions of narcotics. the driver for the 3). No. took Dotson and the driver
Lt. Bolton 3. The admission in evidence of Lt. Bol- City Headquarters. An- the Bossier Police ton’s “that he had arrested brought to the other officer the automobile possession of mari- headquarters. juana previous on a (Bill occasion.” Exceptions 4). No. driver, police the consent of the
With searched the automobile but found no nar- juror 4. Communication of a with the driver, however, was booked cotics. The State’s witness Lt. Bolton as sat having a muffler on his defective at the same restaurant table for vehicle. (Bill Exceptions 5). lunch. No. Lt. Bolton asked Dotson whether he legal questions surrounding each of person. would consent to a search of his holdings these complicated are and diffi- defendant, however, give refused to cult. give questions In order to these ade- his consent. The officers then secured treatment, quate we reconsider the bills City search warrant from the of the exceptions seriatim. City. Court of Bossier Lt. Bolton then clothing searched the of defendant and BILL OF EXCEPTIONS 2: NO. seized allegedly containing a matchbox marijuana. Identity Disclosure Confidential Informant. original hearing, upheld On we the trial At the called Lt. G. O. ruling court’s rejecting sup- the motion to City Depart- Bolton of the Bossier Police press the evidence taken from defendant’s ment as its first witness. He testified to person. ruling. reaffirm that We receipt telephone of the call from the reversed the on We conviction the fol- informant, confidential the arrest of de- grounds: lowing Dotson, fendant and the seizure containing marijuana matchbox require from his 1. Failure of the court to Lt. Bolton, officer, pocket. trousers arresting to dis- close the name of the confidential During early stages of cross-examina- (Bill Exceptions informant. No. tion, defense counsel asked the law enforce- 2). ment officer the name of the confidential 2. The erroneous admission into evi- informant. officer withheld When name,
dence of the matchbox and the sub-
requested
defense counsel
the court
ques-
may
At
time the court
have had rea-
to answer the
the witness
to instruct
you do not
tion,
son
enforce the rule that
part:
stating in
However,
disclose
informers name.
allege will
“The defendant
presented
we have
a defense which we
him, marijuana,
that was found on
stuff
not
alleged
this match box was
have
And
planted
there
the informant.
Danny
intentionally.
That he
Dotson
defense,
it will
part of his
as a direct
got
it
And there
did not know how
there.
place
informer on
necessary to
only
really
possibilities.
Either Lt.
two
at-
credibility and
and attack his
stand
pocket
he
put it in his
drew
Bolton
did,
fact, plant
he
tack whether
*14
put
pocket
out
it in his
informer
an ex-
him.
think
on
I
this
stuff
up
telephone
and called Lt. Bolton
rule.”
ception to the disclosure
Therefore,
I
and told him he had it.
trial
declined
order
The
directly
the defense
it is
related to
think
The
name.
the informant’s
disclosure of
case.”
this
exceptions,
defendant reserved
bill
completed
proceeded.
trial
The
Attorney replied:
The District
began the introduc-
defense
its case. The
respect-
please,
the court
I must
“If
called as witnesses
its
It
tion of
evidence.
assertion, that
fully
counsel’s
contradict
father;
Dotson,
the de-
defendant’s
Luther
any
been
evidence from
there has
Graham,
fendant;
the driver
Lamar
any
indicating that
even
mouth of
witness
de-
vehicle;
Sage, a friend of
and Phil
anything upon the
placed
an informant
gist of
fendant. The
defendant’s
person of this man.
If the
will
.court
marijuana
took the
the officers
recall,
testimony,
in the defendant’s own
pants
pocket,
from his coat
rather than his
idea
it came
was that he had no
where
testified,
pocket
they had
that he had
.as
people.
from. That he was with certain
before, and that
seen the matchbox
never
he
idea
But that
had no
where the ma-
from.
he did not
where the box came
know
terial came from.”
testimon}',
defense
Near the end
objection
court sustained
own wit-
Lt. Bolton
defendant called
again
of-the
refused to order the disclosure
for the name
again, he asked
ness. Once
again
name. The
informant’s
The District
informant.
the confidential
Apparently,
exceptions.
reserved a till of
time, defense
Attorney
this
objected. At
the first
has been combined with
bill
following argument
the’'
made
counsel.
Exceptions
in formal Bill of
No.
...
the court:
Honor,
privilege is the
I
The informer
please
“If it
the court Your
withholding
identity
an
jirivilege
inf
name.
originally asked for the"
ormers
505
506
supplies
prosecution’s
informant who
information
law in which the
case
shows
concerning crime.
informer,
enforcement officials
cooperating
police,
upon public policy
privilege
participated
founded
prose-
in the crime.
When
public interest
and seeks to advance the
par-
cution’s case
that the informer
shows
crime,
Roviaro v.
ticipated
effective law enforcement.
in the
the informer’s iden-
623,
States,
53,
1 tity
United
353 U.S.
77 S.Ct.
should be disclosed to the defendant.
States,
;
cases,
(1957)
L.Ed.2d
Scher United
In
639
such
the informer does more than
151
305
83
tip
police
U.S.
59 S.Ct.
furnish a
L.Ed.
that enables the
to make
Law, 332,
; Am.Jur.2d,
(1938)
working
police,
Criminal
an arrest. While
with the
§
359-360; Gutterman,
pp.
part
The Informer
he
illegal
takes
transaction it-
Privilege,
States,
&
supra;
Pol.S. 32.
self. See Roviaro v. United
J.Crim.L.C.
Barnett,
United States v.
Although no fixed rule illegal importation. prosecution’s ter court-ordered disclosures relate to instances evidence transaction covered the with diota majority opinion upon dissent, language 1. The also es- cited his relied Pagnotta, allegation in our decision v. of a tablishes no rule that an - require (1969). 69 As of itself to 253 “frame” is sufficient L a. 220 So.2d. pointed by Mr. in out Justice Hamlin disclosure of an informer’s name. 508 objection, accused, in than the the transaction informer. Over defense charged. only withheld. The informer was the name of the informer was position in amplify a to or witness con- conviction, setting the United aside the government testimony tradict wit- Supreme Court States said: Moreover, government nesses. witness in the "Three recent cases Courts of peti- knowing testified that Doe denied prob- Appeals identical have involved having tioner ever seen him before. right here —the Government’s lem raised that, conclude under these circum- We an informer identity withhold stances, preju- the trial court committed up helped the commission to set who permitting in dicial error the Government present at its oc- who was the crime and identity to withhold the its undercover States, v. United currence. Portomene repeated employee in the de- face of Cir., 582; v. States 221 F.2d United mands the accused for his disclosure.” Conforti, Cir., 365; F.2d Sorren- (Footnotes omitted). Cir., States, F.2d 627. tino v. United identi- that the it was stated In each case applying in now think we erred We ty disclosed must be of such an informer present to the Roviaro United States may testimony the informer’s whenever case, directly point. in Unlike as decision helpful the accused’s be relevant Roviaro, prosecution’s hete evidence defense. up and does not show the informer set to the an aid participated rule in the crime as that no fixed believe
“We
justifiable. The
law
officers or otherwise.
respect
enforcement
to disclosure is
balancing
problem
calls for
is one that
any
true that
It
defendant denied
flow
public
protecting
interest
marijuana.
is also
knowledge of the
It
against
the individual’s
of information
testimony
that a conflict arose
true
prepare
his defense. Whether
right
marijuana
found
as to whether
nondisclosure
proper
balance renders
pants pocket
“very tight” front
defendant’s
particular
depend
erroneous must
pocket.
inor
his coat
case, taking into
circumstances of each
witnesses,
Sgt.
Lt. Bolton
State’s
charged,
pos-
consideration the crime
Almond,
mari-
found the
testified that
defenses,
possible significance
sible
Their
pants pocket.
juana in defendant’s
testimony,
of the informer’s
and other
Sea-
testimony was corroborated
Officer
factors,
relevant
ton, a defense witness.
The main theme
defendant’s
“This is a
where the Government’s
case
coat
marijuana
participant,
informer was the sole
other was
*16
pocket, and he didn’t
got
know
marijuana
placed
how
how bulk
Graham,
there.
driver,
automobile
also
compartment
locked rear
car
Jones’
testified that the marijuana was taken from some
person.
unknown third
pocket.
the coat
Appeals
Court of
de-
United States
Curiam,
In his Per
the trial
states:
nied
identity,
disclosure of the informer’s
quoting the trial court’s decision as follows :
shown,
“There must be some act
some-
thing more
speculation
than
concerning
“As was said in the case of Roviaro v.
plant,
frame or
before an informant’s
States,
United
511 512 ,the not, any by exceptions of it under bill the
ment announced whether would identity adequate in- was conditions disclose the of the foundation the admission of the evidence. former. the laid in
“Following test down Ro- To admit demonstrative evidence States, are of the viaro v. United we at requires object a the lav/ that the opinion request that should defendants’ be identified. The can be identification be denied.” is, visual, by testimony that at the trial object that the is the related exhibited one evidence, light the the of the In by to It the case. can also be identified finding in fully justified was custody, is, by establishing chain of that inadequate require showing that to the was custody object the it the time sugges of the If bare disclosure name. to in was seized time it is offered evi tion framed the defendant that the informer dence. of the informer’s could effect disclosure require law does not that name, nar of our then enforcement custody possibil eliminate evidence to all Ef jeopardized. would cotics laws be ity object For that has been altered. requires fective law enforcement admission, it if the suffices custodial evi crime- confidentiality of names of probable it is dence establishes that more supplying safeguarded. informers connected object than that the one in a criminal information preponderance the case. A fair sacrifice proceeding, this Court cannot Coleman, evidence is sufficient. State v. ignore public. can it ness Neither Martin, 264, 402; 223 254 La. State v. So.2d en public’s in effective law interest 705, 897; 198 State v. Ber La. So.2d 250 forcement. trand, La. 247 So.2d 386. 170 exceptions bill of conclude We positive The lack of identifica lacks merit. evidence, goes weight tion to the admissibility. Ultimately, than to its rather 3: EXCEPTIONS NO. BILL OF connexity physical factual evidence is a the Matchbox The Admission jury. matter for determination State Marijuana in Evidence. 201; Wright, v. 254 La. 225 So.2d 493; Whitfield, objection La. 219 that the founda- So.2d Over defense 352; Progue, insufficient, State v. So.2d trial court ad- La. tion ed.), matchbox, (12th Evidence allegedly Criminal mitted in evidence a Wharton’s marijuana. question 673, p. raised containing § The record reflects that a small Red Ball criminologist, bered box a second Paul box, Safety containing vegetable Cobb, Jr., Match L. for testing. Mr. Cobb tested- tablets, material and several small vegetable material and found it to be pants Sgt. pocket. marijuana. taken from defendant’s Bringing the box and the writ- City report David Almond ten M. of the Bossier of the first criminologist, he then search, Department, appeared present Police at at the trial. He identified the box. possession of the as the took box. On same same one Super- delivered to him day, photographed he con- box and its visor Herd and identified the number on photograph tents. The laboratory was admitted as the Although number. he objection by evidence without the defense.2 referred to the written Sgt. report placed the Almond a locked criminologist, report box first *18 Department. evidence room of was the Police not in offered evidence. Sgt. later, key. kept days Almond the Two The question presented is whether Sgt. Almond the and carried withdrew box the produce testimony State’s failure to
it to Laboratory the Louisiana State Crime Supervisor Ray Herd the other and There, in Rouge. Baton he delivered criminologist rendered the fatal foundation Herd, Ray box Supervisor of the State ly matchbox, containing defective and Laboratory. Crime Mr. Herd on the wrote material, vegetable inadmissible at number, laboratory box the SP-7397-69. reconsideration, trial. After we think' gave He then Sergeant receipt bear- does not. ing laboratory containing number and photograph The its matchbox and description a brief of the box and contents. is contents in evidence. crime labora- Sgt. Both Mr. and signed Herd Almond tory receipt Herd, signed Ray Super- receipt. receipt This was admitted Laboratory, visor of the State Crime objection.3 evidence without Sgt. Almond is also in evidence. The dis- At Laboratory, the State Crime the stand- SP-7397-69; puted number matchbox bears procedure ard laboratory is to place the it for adequately The number identifies item in an evidence locker under lock purposes box- deliv- admission as the same key. only by It is withdrawn criminologists laboratory by Sgt. ered to the Almond laboratory testing. for It possibility is true a exists that one of criminologist The first laboratory changed criminologists who tested at the contents made a written On the material in the box when it tested. report. day law, however, assigned require Mr. Herd the num- does not 90; S-1, 91-92; S-2, 2. Tr. Tr. 34. Tr. 35. Tr. every possibility of BILL OF negate
foundation EXCEPTIONS NO. 4: tampering. Evidence Prior Arrest. Coleman, supra, the nurse In State v. During cross-examination of defendant vial was not stored a marked of blood who Dotson, the Attorney District asked him if testify. sustaining In the admis- called to marijuana previous he had used occa- vial, this stated: sion of Court replied sions. He that he not. had presented question of “Since a fact Later, Attorney the District asked him
here,
invariably
accorded
and we have
the location
a certain
De-
residence.
in such
wide discretion to the fact-finder
objected
question.
fense counsel
matters,
upset this conviction.
we will not
Attorney
The District
announced that the
upon
predicated
decision is
Our
question was
as a basis
intended to serve
of circumstances established
chain
had in
rebuttal
that defendant
evidence
to show
evidence
its effort
State’s
marijuana.
fact used
super-
custody, control and
continuous
and,
upon
expert
response
question
to a
of defense
particularly,
vision
Butler,
counsel,
supported by
Attorney
the District
stated he had
opinion of Dr.
introducing
of a
experience,
in the vial
no intention of
evidence
long
blood
prior arrest or conviction.
tampered
The law
had
been
with.
requirement
proof be
that the
makes no
objection,
The trial
overruled
positive.
preponder-
clear
absolute or
A
pursued, and the
the cross-examination
question
ance of the evidence on
he
persisted in his
admissibility
require-
is sufficient. This
marijuana
used
before.
had never
here.”
ment
satisfied
*19
called as a
later
Lt.
was
G. Bolton
O.
case,
present
in addition to
In the
cross-examination,
witness.
defense
On
testimony concerning
pos
the chain
ques-
propounded a
Attorney
the District
session,
had
him
before
as follows:
an answer
tion and received
admittedly genuine
an
of the
photograph
has
He
“Q.
22nd of November.
On the
vegetable material
taken
matchbox and
con-
you
previous
have had
testified
photograph,
defendant.
With the
Is this correct?
tact with him.
positive
still
identifi
evidence
falls short of
I arrested
“A.
sir
Yes
have. When
I
identification,
positive
cation. The
lack
him —”
evidence,
however, goes
weight
to the
of the
Whereupon, the
objected.
admissibility.
opin
The defendant
rather than its
In our
he was
ion,
Attorney
adequate
announced
for the District
foundation
prior
trying to
a
arrest. With
show
admission of the evidence.
517
518
assurance,
he was allowed to resume
came after the
Attorney
District
had an-
produce testimony
cross-examination
nounced that he would
no testimony
offer
tending
previ-
prior
to show that defendant had
of a
arrest or conviction.
It was
marijuana.
ously
unresponsive
question
used
to the
directed to the
officer.
question
The
was whether he had
mistrial,
Defense counsel moved for
any previous contact with defendant. The
perfected
hut was denied. He later
it
question merely called for an affirmance
following
Exceptions:
Bill of
prior contact,
denial
already
referred
objected
“Defense counsel
State
to the
the defendant while under redirect
asking questions to the defendant con-
examination
own
counsel.
ref-
cerning
part
prior
and made a
arrest
erence to arrest was unsolicited.
86,
transcript, pages
hereof is the trial
objected
88 and
Also
90.
It is well established that unsolicit
police
Buddy
testifying
officer
Bolton
ed and unresponsive testimony cannot be
prior
concerning
arrest
pages
on
119 and
charged against
provide
State to
requested
and a
pages
mistrial was
on
ground
Sinclair,
for reversal. State v.
transcript
120-121
which motions
84,
La.
365;
Callihan,
So.2d
State v.
were overruled and defendant
then and
298,
La.
521;
Arena,
242 So.2d
State v.
excepted.”
there
358,
832;
254 La.
Simp
223 So.2d
v.
State
son,
original hearing,
On
212,
585,
held
Lt.
La.
we
43 So.2d
cert. denied
929,
Bolton’s
that he
had arrested
339 U.S.
70 S.Ct.
present offense on November previously defendant had used mari defense, hand, on the other asserts juana Although prior admissible. prior frag- that it refers to a arrest. The criminal, independent conduct was it had an mentary ambiguous. find sentence is We guilty knowledge, relevance to an essential however, unnecesary, the con- to resolve charged. element of crime LSA-R.S. flict. 15:445, Harris, 446; 232 La. v. State 496; Wagner, reflects that the testi
The record 95 So.2d 229 La. Comment, mony referring Admissibility of Lt. Bolton the arrest 272; So.2d *20 519 520 Poe, 606, Arrests Evidence of Prior Louisiana also State v. 214 La. See 38 So. Trials, 684, (on rehearing) 690. On ; Criminal 19 La.L.Rev. 2d Marr’s Criminal intent, Louisiana, guilty knowledge 633, pp. or the the issue of of Jurisprudence 966- § prior marijuana. of defendant denied use (1923). Hence, right had contradict to State marijuana prior The use evidence in the testimony. At as noted to or contra- properly admitted rebut Attorney re- original opinion, District testimony on an essen- dict defendant's testimony “impeaching.” ferred to the as error in the rul- no tial issue. We discern Tech- impeaching term a misnomer. is ings judge. of the trial designated
nically, testimony should exceptions lacks merit. The bill contradicting. rebutting or In State v. as Monroe, we La. So.2d NO. 5: BILL EXCEPTIONS OF stated: Bolton. with Juror Lt. Contact of is “Rebutting is that which evidence the Loui- As Article 791 authorized repel, explain, counteract offered to Procedure, jury of Criminal siana Code by the disprove given in facts evidence prior unsequestered present case was Hemler, 157 La. party. State v. adverse During the noon charge. to court’s 902, 103 257. So. recess, jurors get court released the rebuttal, impeaching, recess, “It is not to show counsel defense lunch. After the one ground that the the witnesses as to statement of for a mistrial on moved v. Fos- Lt. true. with jurors what occurred State had communicated witness, ter, during lunch.4 To Bolton, 411. And contra- La. 91 So. a state rebutting testi- support motion, defense counsel diction is one the means of produced by juror testimony he of a witness related that observed fied. He prosecution Bolton criminal table Lt. the defendant at the same seated during As persons the testi- lunch. State can not contradict other two among dined, them- mony the defendant the four conversed of a witness response questions offered in defend- until selves. charge court, declined ant’s behalf on the trial of case. defense counsel Blount, case. 12.” diners discussed the 50 So. that the had La. ju- anyone except At the District had admonished the ease with anyone. torney LSA-C. See rors not case with or defense counsel. to discuss the placed the He had witnesses under rule Art. 764. Cr.P. and instructed them not to discuss . *21 District Attorney sought jurors continuously The then to call were in the com- juror explain Tangipahoa to the incident. Defense pany deputy of of sheriffs objected, counsel and the during days court sustained Parish three objection. deputies ju- trial lasted. The drove meal, rors ato restaurant for each and situation, appraising In trial lodgings depu- to night. their The each commented: them, them, ties ate conversed with with “The court is aware of the fact that we and did errands for them. in community, very this have limited fa- deputy in “Two of the sheriffs who were lunches, you cilities for as know. We this close and continual association with just have the one small restaurant. And Rispone the jurors were Hu- Vincent and jury has sequestered not been at this lon Turner’s counsel Simmons. moved time. Now unless there is some evidence Rispone for a mistrial when testified as of improper some communication prosecution, a witness for the and made jury, I your can’t see that can entertain I the same motion when Simmons testified. motion for a mistrial.” The trial judge overruled for the motion “It have would undermined the basic a mistrial. guarantees by trial jury permit of Louisiana, In Turner v. 379 U.S. kind of an jurors association between the S.Ct. L.Ed.2d States United prosecution and key two witnesses who Supreme Court reversed a state conviction deputy not were But the role sheriffs. because of the “close and continual associa- Rispone played that Simmons and as major tion” of two state witnesses with the deputies made association even more jury in their charge. Supreme The Court prejudicial. relationship For the was one held: jurors’ which could but foster the principal
“The two in witnesses confidence those who their were offi- prosecution at the trial guardians during period were Vincent Ris- cial the entire pone and Hulon depended Simmons. Both were the trial. And Turner’s fate deputy Tangipahoa upon jury sheriffs how Parish. much confidence the
placed in (Foot- these two witnesses.” notes omitted). seques- jury “The members of the were There, tered accordance with law jury Louisiana sequestered. during witnesses, course and were principal deputy two state both ‘placed by charge sheriffs, charge of the placed jury. Sheriff’ were of the judge. practice, In days, deputies this meant that For three these had and close courthouse, jurors, eating left the togeth-
continual association with the and went them, them, Cosmopolitan doing restaurant, and er to conversing with city Shreveport, part errands for The case deals with and to them. a secluded a problems pros- raised of the restaurant. constitutional when sequestered charge has witness ecution Adcock, “Defendant called A. N. H. I. jury. Moore, Guy Armstrong part on this case witnesses. Neither inapplicable That decision anything these witnesses testified to prosecu between casual communications Chapman was said to each Ware unsequestered juror. tion witness and an They merely together, other. saw them situation, principles come other such conversation, proven and in which operation. majority rule into *22 Chapman Chap- and Ware to about juror a and wit between a communication in driving get man’s fast time. to court showing a in a trial without ness criminal beyond dispute It is established that furnishes prejudiced that the defendant was Chapman and Ware the restau- went to upsetting a State ground conviction. no Linsey, accompanied by Barry rant and 184; 1070, Nails, 234 So.2d State La. v. 255 together, all not one of whom dined and 257; States La. So. Johnson, v. against word was said about the case 532, 9 A.L.R.3d (Mo.), 364 Miles S.W.2d v. at As four men lived these Johnson. 1266; with Annot., Jurors-Communications Mooringsport acquainted with and were Witnesses, 1280-1282. 9 A.L.R.3d other, very thing a natural each supra, Johnson, this Court together. State v. for them to There was dine majority rule and aligned nothing itself with suspicious about it.” juror had after a upheld the conviction case, present In the The a witness. eaten lunch with State only among four establishes conversation holding: prejudice, no Court found at a res people, including juror, seated alleges also in motion “Defendant showing no that taurant There is table. juror Chap- trial for a that said new juror or the case. other diners discussed man, day left second of the Curiam, judge states: In his Per trial with one courthouse arm arm sequestered yet Ware, “The had not been jury appeared as a for the who witness charge not very and defendant did active prosecution, and who was case, the case had discussed against in the witness to influence him sought or had juror the said said and Ware that the wit- mere fact any manner. The Chapman in close as were conversation juror ness and the ate lunch at the same This has validity. Physical distinction no only table in sequestration restaurant in Benton jury of a only -is one method grounds for not a mistrial.” jurors for insuring tampered are not with, case, do not discuss the and are not ruling the trial as to subjected influence, they to outside so that juror of a misconduct is entitled to may verdict, Turner, reach their said Fike, great weight. See State v. 129 La. “upon developed the evidence at trial”. 630; 56 So. Marr’s Criminal Juris state, All courts in permitting this before prudence Louisiana, p. (1923). § jurors separate or even to leave group, courtroom as a them admonish not circumstances, Under case, any opinion, discuss the form or presume prejudice. Court cannot See read or anything listen to about the case. Nails, 921; LSA-C.Cr.P. Art. The redactors of the Code of Criminal supra. juror While innocent contact of Procedure, according to the under comment avoided, with a is to be witness when such Article unnecessary found it always contact does it does viti occur face practice of this uniform even to in- ate the opinion, In our conviction. the trial procedural guide clude for such instruc- judge correctly denied the mistrial. jurors separate tions. Whether conviction should stand. whether sequestered, physically are assigned, For the reasons the conviction the standard of conduct of others toward and sentence are affirmed. them jurors and of the others is toward the same. TATE, J., dissents for reasons as-
signed original opinion. in our In Turner it was the close association jurors between the deputy two sheriffs *23 DIXON, J., dissents for reasons ex- key prosecution were who witnesses which pressed original opinion. in our constitutionally impermis- was found to be Supreme sible. The United States Court BARHAM, (dissenting). Justice pointed during out that this association Excep- opinion am of that Bill I period of foster the trial could not but error, and I presents tions 5 reversible No. jurors’ men confidence these two pretermit bills. a discussion of other Here, only as keepers but also as witnesses. distinguish case to the majority attempts just before submitted Louisiana, just argument by 85 counsel jury, S.Ct. before Turner v. U.S. Bolton, judge’s charge, Lieutenant by finding that L.Ed.2d witness, sequestered”. principal lunched with jury “the State’s Turner case j'uror. need There is no to establish what they discussed whether discussed with the case. Bolton’s association juror’s
juror “could not foster” that but in him a witness in the trial.
confidence opinion the here was of my association Supreme same nature as that which
Court said in Turner “undermined basic
guarantees by jury.” The convic-
tion and sentence should be reversed. respectfully dissent.
I So.2d COMPANY OF FURNITURE
ROYAL ROUGE, BATON Inc. BENTON, Jr.,
Ernest et ux.
No. 51119. 17, 1972.
Jan.