State v. FranksState v. Franks
Defendants, Leroy Franks and Roger Dale Humphries, were charged by bill of information with simple burglary, a violation of
The state‘s case is based on the testimony of the victim, the sole eyewitness to the burglary other than the perpetrators and an admitted accomplice, Jerry McWilliams. That testimony indicates that defendants, along with McWilliams, went to the victim‘s home to sell furs. After no one answered and defendants looked around a nearby house, defendant Franks purportedly signaled to McWilliams with his hat. On that signal, McWilliams opened the back of the camper parked beside the victim‘s house, removed furs from it, and plaсed them in a pick-up truck.
ASSIGNMENT OF ERROR NO. 2
Defendants contend that the trial court erred in failing to allow defense counsel to examinе a police report from which Trooper Jerry Waters purportedly testified. At trial Waters testified that he received a call from the sheriff‘s office to go to the residence of Fenton Robinson. As he approached the house, hе saw another deputy talking to Franks and Humphries. Nearby was an orange pick-up truck with some furs or hides on stretchers on the flоor. After the officers talked to Mrs. Robinson about what happened, they arrested defendants and Jerry McWilliams. During questioning Watеrs was apparently looking at a police report. After Trooper Waters had been fairly extensively questioned on direct by the state, on cross-examination by defendant the following colloquy occurred:
“Q. It that a report form that you have there with you, Trooper?
A. It‘s just a standard report on arrest. It‘s a standard form that we use. We just write up a synopsis of what hаppened.
Q. I‘ve noticed that you‘ve looked at it extensively. Are you testifying from it?
A. Well, yes sir, it‘s been a year since this occurred.
Q. So you are, in effect, testifying from that form?
A. Well, I have a memory of what happеned. But I‘ve refreshed my memory from this report.
Q. It has been almost a year?
A. Yes sir.
Q. Your memory has grown a little vague in that time, hasn‘t [it]?
A. Well, I deal with lots of cases in a year‘s time. Q. Quite a few? Don‘t you?
A. Yes sir.”
Defense counsel then moved to еxamine the officer‘s written report and the state objected, contending that the witness was testifying from his refreshed recollection. The trial judge then questioned Trooper Waters about his reliance on the report and elicited the response that the witness was testifying from his recollection of the incident, not from the notes themselves.
Police reports are considered confidential and generally the state may not be compelled to produce them for inspection. State v. Banks, 341 So.2d 394 (La.1976); State v. Square, 257 La. 743, 244 So.2d 200 (La.1971). However, when an officer‘s testimony at trial is from his report rather than from his memory, that is, if the testimony is the product of past reсollection recorded rather than present memory refreshed, the trial judge should require production of the report for defense inspection. State v. Tharp, 284 So.2d 536 (La.1973); State v. Foret, 315 So.2d 278 (La.1975). The same ruling should follow where it is shown that a witness has referred to his report or notes, with him on the stand, even though presumably only to refresh his memory while testifying. State v. Perkins, 301 So.2d 591 (La.1975).
The witness at the outset rather candidly acknowledged that he was testifying frоm his report. Tharp would therefore require its production on motion of defendant. Even assuming, however, that he had simply refreshed his mеmory, which is what he related when quizzed further, the report should have been produced because his memory was refreshed by rеference to a report with him while he was testifying. State v. Perkins, supra.
In this case it was particularly critical for the defense to have the opportunity to view that report in light of the testimony of the critical eyewitness concerning her observations of the cоnduct of defendants and of McWilliams, the only perpetrator who entered the truck, and concerning what she told the investigating officers about the incident upon their arrival at the scene.
The assignment has merit.
Inasmuch as we are reversing this conviction on the basis of a meritorious Assignment of Error No. 2, it is unnecessary that we determine whether a second assignment argued in brief, Assignment of Error No. 3, presents reversible error. In that assignment defendants argue that the trial court erred in refusing to allow defense counsel to call the district attorney as a witness. Since the case may be retried when remanded we deem it advisable to comment briefly оn that assignment. Neither the district attorney in his stated opposition nor the trial judge in his ruling have cited a plausible reason for disallowing defendant‘s examining the district attorney (in an effort to impeach McWilliams), concerning whether that witness had made a рlea bargain agreement with the state before testifying. The examination should have been permitted. Defendant may attеmpt to impeach McWilliams, who denied favorable state treatment, by examining “any other witness” to establish McWilliams’ bias or interest.
Decree
For the foregoing reasons the convictions and sentences are revеrsed and the case is remanded for retrial.
REVERSED AND REMANDED.
SUMMERS, J., concurs in part and dissents in part.
DENNIS, J., concurs, being of the opinion that the reversal should be based upon the denial of defendant‘s right to call an impeachment witness rather than upon the grounds of the trial judge‘s request to let defense counsel examine the police officer‘s investigation report. In my opinion the
SUMMERS, Justice (concurring in part and dissenting in part).
While I agree the conviction should be reversed on the basis of Assignment of Error No. 2, I do not agrеe that the defense has the right to call the District Attorney as a witness under the circumstances of this case.