No. 56162 | La. | Sep 5, 1975
Lead Opinion
Charles Guidry was charged by bill of information with having distributed a controlled dangerous substance, to-wit: marijuana, on November 12, 1973, in violation of La.R.S. 40:966. After trial by jury, defendant was found guilty and was subsequently sentenced to six years at hard labor. Defendant appeals to this court, relying on four assignments of error for reversal of his conviction and sentence. Finding merit in Assignments of Errors Nos. 1 and 2, requiring reversal of the conviction and sentence, we need not consider the other assignments of error in our disposition of the cause.
FACTS
On November 12, 1973, Dale Albert, an undercover informant working for the Southeast Louisiana Regional Bureau of Drug Enforcement, contacted a narcotics agent with the same unit concerning the purchase of marijuana from Charles Guid-ry and others. The informant Albert obtained a ride from Thibodaux to Chack Bay with another individual. At the residence of Charles Guidry and David Clement, Albert was advised that the purchase of marijuana would have to take place at the residence of Shelby Himel. Guidry and Clement followed Albert to the Himel residence in Chack Bay, Louisiana, where Albert purchased six lids or about one hundred and thirty-one grams of marijuana for $72.00. The informant, Dale Albert, was not a commissioned police officer; in fact, he had a past criminal record for convictions of possession of marijuana and stolen goods.
ASSIGNMENTS OF ERRORS NOS. 1 AND 2
In accordance with the procedure prescribed in La.R.S. 15:492, defense counsel attempted to establish by the testimony of other witnesses that Dale Albert, a state witness, was biased and prejudiced against defendant.
Dale Albert, a paid informant who participated in the sale of the marijuana leading to the offense here charged, was asked on cross-examination whether he was biased against defendant, to which he replied that he was not. He was then asked if he had ever tried to hurt defendant, and he replied: “No, I never tried to hurt him.” Once again, Albert reiterated in response to questioning by the defense counsel that he was certain that he was not biased against the defendant.
During the presentation of defendant’s case, Charlene Dupont, the defendant’s girlfriend, testified that some two months prior to November 12, 1973 (date of the alleged offense), she had been the girlfriend of the informant, Dale Albert. She was then asked if she knew of any incident which occurred involving Charles Guidry, the defendant, and Dale Albert, to which she replied in the affirmative. Defense counsel then sought to elicit information relating to an alleged attempted murder perpetrated by Albert upon the defendant in April of 1974. The state objected on the ground of relevancy. Out of the presence of the jury, it was established by this witness (Charlene Dupont) that one night in April of 1974, some five months after the date of the offense charged (November
Later, when defendant took the stand, he was asked: “Mr. Guidry, did Dale Albert attempt to murder you?” Objection by the state was again sustained by the court for the same reasons as above.
Defendant contends the testimony regarding the shooting of defendant by the informant Albert in April was admissible in order to show bias and prejudice of this state witness. The curtailment of this examination of the witness, Charlene Dupont, as well as that of defendant, after the foundation had been laid by the questioning of Albert who denied any bias or prejudice towards defendant or that he had ever tried to hurt him, is claimed as error.
La.R.S. 15:492 explicitly provides:
When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same.
We are not concerned here with the curtailment of cross-examination of a prosecution witness by defendant to show bias and prejudice.
The failure to permit this evidence before the jury was clearly contrary to La. R.S. 15:492 and constitutes reversible error.
DECREE
For the reasons assigned, the conviction and sentence are reversed and set aside, and the case is remanded for a new trial.
. See Davis v. Alaska, 415 U.S. 308" court="SCOTUS" date_filed="1974-02-27" href="https://app.midpage.ai/document/davis-v-alaska-108974?utm_source=webapp" opinion_id="108974">415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Senegal, 316 So. 2d 124" court="La." date_filed="1975-06-23" href="https://app.midpage.ai/document/state-v-senegal-1887296?utm_source=webapp" opinion_id="1887296">316 So.2d 124 (La., 1975); State v. Lewis, 236 La. 473" court="La." date_filed="1959-01-12" href="https://app.midpage.ai/document/state-v-lewis-1721511?utm_source=webapp" opinion_id="1721511">236 La. 473, 108 So.2d 93 (1959); State v. Elias, 229 La. 929" court="La." date_filed="1956-03-26" href="https://app.midpage.ai/document/state-v-elias-7175068?utm_source=webapp" opinion_id="7175068">229 La. 929, 87 So.2d 132 (1956); State v. Leahy, 175 La. 659" court="La." date_filed="1932-07-20" href="https://app.midpage.ai/document/state-v-leahy-3474516?utm_source=webapp" opinion_id="3474516">175 La. 659, 144 So. 138 (1932).
. There can be no question but that this error was prejudicial to the substantial rights of the accused and likewise constitutes a substantiál violation of his constitutional and statutory rights. La.Code Crim.P. art. 921 (1966). Albert was the sole state witness to the sale of the marijuana here involved. As a matter of fact, Himel testified that he sold the marijuana to Dale Albert and that defendant was not present at his residence at the time of the transaction. Hence, the credibility of Albert was crucial to this prosecution against defendant.
Dissenting Opinion
(dissenting).
The issue in this case is did the defendant Charles Guidry sell marijuana on November 12,1973.
Dale Albert, the State’s witness, was not a commissioned police officer. He was, however, working with the Regional Narcotics Agency as a paid informer. He had previously been convicted of possession of marijuana and testified to this fact and to his past association with the defendant Guidry and others.
Detective Sergeant Keith Estevens testified that he observed the defendant on the night of November 12, 1973 and followed him from his house to Shelby Hymel’s house. By prearrangement the informer Albert was furnished with money by Es-tevens, and he was also followed to Hy-mel’s house where, having set up the deal with Guidry early that night, the purchase transaction was carried out. Estevens’ observation of the transaction, through binoculars, was from a distance of 300 to 500 yards. Soon thereafter he had a rende-vouz with Albert, who turned over the six lids of marijuana he had just purchased from Guidry.
Albert’s close association with the defendant and his friends existed during October, November and December 1973. It was during this time that Albert, working for the Regional Narcotics Agency, was able to make approximately 35 to 40 drug cases, including the defendants on November 12; 1973. However, in order to maintain a cloak of secrecy over the informer, defendant’s arrest and the arrests of the others, did not occur until April 1974 when a large roundup of all defendants took place. It was at this time that the alleged shooting by the informer took place.
At no time prior to April, however, does the record indicate any hostility between defendant and Albert the informer. The alleged shooting incident, according to defendant, occurred the day before his arrest in April; this was long after the case had been made against the defendant when the alleged hostility could have no bearing upon the informer’s version of the facts which had already been stated to the law enforcement authorities. With these facts firmly established in the record, the trial judge ruled that evidence of the shooting six months after the transaction for which defendant was being tried had no relevancy to the case.
As this Court said in State v. Howard, 230 La. 327" court="La." date_filed="1956-05-07" href="https://app.midpage.ai/document/state-v-howard-7175104?utm_source=webapp" opinion_id="7175104">230 La. 327, 88 So.2d 387 (1956), interpreting Section 492 of Title 15 of the Revised Statutes:
“If testimony of this character can be introduced to discredit a witness, the question then recurs: Where is the limit to the introduction of testimony on collateral facts for that purpose? If a quarrel or ill feeling between the parent of a witness and a parent of an accused can be relied on to discredit the testimony of the witness, family quarrels, disputes, and hostilities ad infinitum can be inquired into for the purpose of disqualifying a member of one of the families from giving impartial testimony against a member of the other family. This would result in no end of collateral issues in a criminal prosecution, and it would have a far reaching effect in impairing public confidence in the accuracy and impartiality of human testimony.”
In my view the proper interpretation of Section 492 requires that the testimony sought to establish bias must be actual and direct, State v. Cullens, 168 La. 976" court="La." date_filed="1929-06-17" href="https://app.midpage.ai/document/state-v-cullens-3480539?utm_source=webapp" opinion_id="3480539">168 La. 976, 123 So. 645 (1929), in relation to the matter at issue. The testimony sought must also have a close relation in point of time to the offense at issue. State v. McFarlain, 41 La. Ann. 686" court="La." date_filed="1889-07-15" href="https://app.midpage.ai/document/state-v-mcfarlain-7194964?utm_source=webapp" opinion_id="7194964">41 La.Ann. 686, 6 So. 728 (1890).
I would not disturb the ruling of the trial judge in the exercise of what I consider to be a sound discretion and upset this jury verdict in a prosecution where
I respectfully dissent.