State v. HamiltonState v. Hamilton
Thrеe bills of exceptions are urged to reverse the conviction and sentence of John Hamilton, Jr., for distribution of heroin,
Bill 1
After several continuances granted on the motion of defendant, thе case came to trial on December 11, 1973. At this time defense counsel informed the court that the State had not furnished the place where the crime was alleged to have been committed as requested in his application for bill of particulars, other than the advice from the District Attorney that the crime had been committed in the parish of East Baton Rouge.
At this time the Assistant District Attorney advised that the State would try the defendant for an offense which occurred on May 28, 1973 at the parking lot of the Rebel Shopping Center on Florida Street in Baton Rouge. In addition, thе State agreed to eliminate any reference at the trial to the similar offenses of February 7 and 9, 1973 referred to in its notice of September 20, 1973.
At this time defense counsel moved for a continuance, asserting that the late answer to the bill of particulars and the elimination of two offenses placed him at a disadvantage in the defense of the case. For, whereas prior to that time he was concerned with invеstigating three alleged offenses, he was now faced with defending against only one offense, the location of which had just been made known to him.
Aside from the fact that no written motion for continuance appears in the record, verified by defendant or his counsel‘s affidavit, as required by
“Supplementаl bills of particulars or a new bill may be ordered by the court at any time before the trial begins.”
This bill has no merit.
Bill 3
Officer Charles Spiller is an undercover narсotics investigator. The State was attempting to introduce into evidence an inculpatory telephone conversation Spiller had with the defendant on May 28, 1973, the conversation having been initiated by Spiller from the police narcotics office. The procedure was to press a button and begin recording the conversation on all calls. Several unrelated conversations, therefore, were recorded on the same tape. Defense counsel insisted that the entire tape in which his conversation was recorded be played back and not just the conversation between himself and Spiller.
There is no merit to this contention. Only relevant evidence is admissible, and defense counsel had no right to insist upon the playback of conversations between other parties entirely unconnected with the prosecution or defense in this case. Since the entire conversation between Spiller and the defendant was played back, there has been no violation of the statutory mandate that “Every confession, admission or declaration sought to be used against anyone must be used in its entirety, so thаt the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement mаy afford.”
This bill also involves a defense objection to permitting the Assistant District Attorney to testify to the custody of the tape recording pending the trial. The objection is based upon this Court‘s decision in State v. Cox, 246 La. 748, 167 So.2d 352 (1964). The Cox Case, however, involved a defamation of character directly involving the District Attorney himself. Because of this, the District Attorney had a personal interest in the case, for conviction of the accused would amount tо a public vindication of the wrong done to him personally.
In the present case the Assistant District Attorney was neither the victim nor otherwise personally involved in the prosecution. He merely testified as to who had custody of the tape pending trial.
None of the grounds for recusatiоn of a District Attorney or his assistants is present in this case,
Bill 4
In explaining the terminology used in his conversation with the defendant, Spiller was asked what the reference to “coke” meant. He answered “Coke is cocaine“. Defense counsel objected to any reference to cocaine, another prohibited drug, because the defendant was charged with the distribution of heroin. Reference to cocaine transactions by the defendant would therefore constitute another offense. When the objection was overruled, Spiller
“Merely because relevant evidence bearing upon the question at issue also tends to show the commission of other crimes by the accused does not make such evidence inadmissible. `It is competent for the prosecution to put in evidence all relevant facts and circumstances which tend to establish any of the constituent elements of the crime with which the accused is charged even though such facts and circumstances may prove or tend to prove that the defendant committed other crimes.’ State v. Riley, 182 Neb. 300, 154 N.W.2d 741 (1967).” State v. Kinchen, 290 So.2d 860 (La. 1974); State v. Graves, 301 So.2d 864 (La.1974). See also State v. Morgan, 296 So.2d 286 (La.1974).
This bill has no merit.
For the reasons assigned, the conviction and sentence are affirmed.