*1 721 722 judge nothing except and to same lower for us to review errors by nota- approval signature. and A mere a “discoverable mere by pleadings defendant ex- proceedings clerk in- without insufficient, spection cepted reserved a bill is of the evidence.” 920 Art. C.Cr.P: not relieve the from the and did defendant Our examination of the record no reveals signed writing having necessity of such errors.
proper exceptions. absence In the bill assigned, For the reasons the conviction bill, court cannot review of a formal are affirmed. sentence on this rulings judge quo point.” language in the Cum- of the Court effect, as
mings decision is the same
follows:
“Assuming,
alleged
in the motion
alleged patent the face record, may only be considered exceptions
Court when formal bill has prepared
been and signed Laviolette, 195
are State So. La. ; Flanagan,
2d 254 La. (1967) State v. Ash, ; (1969) So.2d 872 337, 242 So.2d 535 (1971); James,
State v.
116 (1971).
In view of the fact that there are no
perfected exceptions bills of *2 Orleans, de- Uddo, for
Frank New J. fendant-relator. Gremillion, Harry Atty. Gen., P. F.
Jack Howard, Atty. Gen., H. Garri- Asst. Jim son, Atty., Korns, Dist. Dist. Louise Asst. Atty., plaintiff-respondent. for HAMLIN, Justice: juris- supervisory In the exercise of diction, 10, VII, Art. Sec. La.Const. granted for application defendant’s Certiorari, December 1971. By a Joseph two count bill of information willfully Migliore was charged (1) with J. unlawfully having possession and in his to-wit, dangerous substance, controlled Co- caine, August 12, willfully on and (2) unlawfully having possession in his to-wit, dangerous substance, controlled LSD, August 12, on filed pleaded guilty Defendant Motion special pleadings a among his Evidence Independent Examination recited: “Defendant, MIGLIORE, JOSEPH counsel, undersigned moves through conduct the defense to the Court allow alleged independent examination of the an defendant substances which the narcotic possession in the charged with the granted Cer- this Court As stated in order captioned That case. above 2, 1971 and ordered December prepared, tiorari on to be proper defense February that the matter be heard necessary that it finds counsel defense 13, 1971, the December 1972. On conducted independent examination Louisiana, through the Dis- Assistant laboratory testing Orleans, Attorney trict for the Parish of presently in made on the substances filed a motion in this Court for Permis- of the New Police Orleans Evidence; granted sion to Take Department, Narcotics Division day on the same recited as follows: New Attorney’s Orleans District Office.” hearing A was held the trial court on the State comes into Court “Now September 24, 1971, above motion on As- Louisiana, undersigned through conclusion, its denied, the motion was Attorney Parish for the District sistant being denial based on certain enumerated Orleans, requests respectfully jurisprudence. The trial court stated: evi- be allowed adduce above- in the district court dence interpret Fifth Circuit Court “You matter, contradictorily captioned they way one another as what I accused, concerning as- practical say deny coun- I defense matter. *3 pects allowing of inde- accused an Independent Examina- sel’s Motion for pre-trial pendent narcotic examination of trial, prior based Evidence evidence, question which will be heard Clack, 61, 222 254 La. So.2d on State v. February in this Honorable Court on Hunter, 295, 195 857; 250 La. State 25, 1972. Pailet, 273; and State So.2d 294, all cases 483, three So.2d have adduced such “The State re- holding that all evidence basically hearing of the Motion evidence cases impending criminal lating to Independent Evi- Examination of For subject to should not be dence, heard in the trial court which was until offered it is the accused unless 1971, 24, had September on the State time in at the evidence thought that this would order Court Also, my is Judgment in the matter. up hearing, but matter as under Reid, U.S.Ct.App., 441 cited Clack v. existing jurisprudence of Court F.2d 801.” pre-trial per- such examination is not mitted, did not it would for the defendant reserved State think Counsel applied any purpose put evi- exceptions, serve to on such and thereafter bill of at that dence time. this Court writs. Appeals, on putting “The evidence Court 441 F.2d purpose of 801. The Court, concerning practical in opinion in the trial court District its did not aspects question at issue refuse to look to this precedent, here case as however, part interpret can made a holding so that this evidence be did Court, pertain only in in this the record the case examination of narcotic consider enabling this evidence at time thus Court trial. mere aspects fact that legal practical both the and the the United States Fifth Circuit as Appeals its decision reaching Court looked to the of the issue case of Miss., ex- pre-trial State, 396, to allow such a to whether So.2d Jackson not, unquestionable narcotic evidence amination of ex- safe- procedural up proper amination was the and to set consideration of the examination court in such an said decision. guards should on is a ing of the ant’s motion for of Evidence: following three ' permitted. The matter A «* January February part of the instant hearing [*] trial court which [*] 3, 1972; the evidence ” was held errors Independent Examination argued assigned as record. ordered, denied in this Court trial adduced defend- on court rul- cases.” lated to the case of State v. should have factual and cases “3) The court based its 195 So.2d case and the above 273, completely present legal recognized (1967) and State v. situations between the case. distinct and unre- the contrast decision That (1964), 250 La. the court quoted on the Pailet, which 295, substance, argued should be able to examine
“1) Defendant following contentions which are held the District substances narcotic submitted in its brief: Attorney evidence, especially where substance, in and of possession of the respectfully suggests “The to this charge. itself constitutes basis discovery only Court that broad rules of purported to be contra- If the substance should be cover all criminal cases substance, actuality is in another band all, Louisiana, adopted, and that if at *4 contraband, then the defendant there is valid reason to allow this complete being charged in contravention procedure in narcotics alone. cases rights. constitutional his “Alternatively, misinterpreted suggests the “2) the that The court Reid, permit to should decide to S. Fifth Circuit Court of Clack v. U. dangerous substances. such inde- evidence case an instant the accused Crime Koch, Major Director examination pendent John Depart- the New Orleans Police Lab for this event in accused drug, that to ment, question, “State answered any receiving required, before be should inure problems which would Court expert chem- qualify his drug, to your Laboratory giving the de- in Crime contradictorily trial court ist before the attorney expert narcotic or his fense State; accused’s if the own examina- trial for his evidence before judge, accepted by the trial expert tion,” be some “There would as follows: at sample should be delivered drug be encountered. problems that would expert Major Koch this time a First, in sealed receive the evidence we open or subordinates one of envelope us make an in order act, the minutes can reflect so intact, analysis remain se- let the seal we special in the evidence incision and a evidence, analysis, iden- make the cure this time be made envelope can at envelope, tify place it back in the preserving purpose, noted thus for this tape gum tape paper over the put a seal and assur- the State’s chain of evidence If are re- across seal. and initial independent ing that the examination then the chain quired to break seal by a will be made well evidence very to estab- would be hard of evidence qualified person good character. Supreme decides this lish. If the expert accused’s chemist “Moreover the is not a serious practical, and this would be by the should at this time be ordered guidelines have problem, then I think would report findings his scientific present so as to who would be to be set drug writing to the concerning ex- court we can that when we come into trial' and to the within court seal, why original was plain time, few well weeks at rate evidence, broken and put on the advance of trial.” put situ- There certain new seal on. there not be January adduced at the see where evidence ations I can give to hearing disclosed that at amount of sufficient evidence speaking of problems attorney am would encounter and I time the State a defense permitted examination of residue if it cases.” testify. expert testimony following Are fied as an 1. The was adduced Major proceed when certain tests can times from. Koch later aspects drug particular Attorney ings (By run on District : Assistant posi analysis Wheeler) be declared negative same examining and also tive evi of narcotics “Q. expert get quali on the one time? Gould has to be dence a criminalist *5 After by- the above statement was made “BY THE COURT: Koch, Major following ensued in the “Q. case, In this No. 222-886 vs. trial court: Migliore, charged having alleged with say positive necessary date, making stand it is a later so drug expert, arrangements getting violation and the other all of the running up nega- test, parties together pre- a come a interested would possible? major problems tive conclusion? Is in sent some spect. this re- possible “A. This is on the same even analyze. words, you material we In other “Q. Do think it would be feasible during tablets not trial if the accused has probable? independent pre- “Q. Is it been allowed an MB,. evidence, “BY ÜDDO: trial examination of the object practical during “I to that . how would it be “WITNESS: trial for the court to recess explain. possible, experts “Let me This is of the accused commercially prepared narcotics, in not time run on tests tablets, proprietary compounds, long done, but where it could be how drugs homemade, take, etc., illicit it is in would and is it feasible? possible because we find distribu- “A. This would be determined ' compound quantity, within if it is not a residue case homogeneous tablet is counsel, not and we to turn over to defense it- may portion take a the tablet is feasible. Where it be run could get negative portion a and a result I think would be a matter of choice get positive give re- tablet and a of defense I counsel. can’t permission this, sult. to do it would have Superintendent “Q. That on the same tablet? to come from the Police, They quality arrangements “A. Yes sir. do have but I feel sure they project control when are mak- in could be made the Police Lab we ing drugs. these illicit This is a have if it would be convenient. This possibility. possible preference. This is also be would a matter of dealing pow- long recess, your we are opinion, when with bulk How “Q. in der, you sample required from is where would be if defense coun- powder.” expert present sel or their respect during trial, long With how a recess would have be
/'Major
testimony
gave
following
:
roughly
Koch
declared
for these tests to be
“WITNESS:
run?
very
thing
“This would
range
ar-
largely
be
difficult to
“A. I
be
would
deter-
by:
as I see it. No. 1: we find
mined
No.
the number of
difficulty
police
run,
we have
in other
tests that have to be
and No.
arranging
particular drugs
matters in
being
defense counsel
involved
* * *
police
when certain
the case.
require
might
matters are conducted which
“Q. The trial
have to be recessed
presence;
secondly,
day?
following
their
we would
until the
up
possibility
have to set
schedule and an
“A. This is a
as what time
analytical
determination,
put
schedule
the Motion is
before the court.”
testimony
expert
our cases at the convenience of de-
The
of defendant’s
people
fense
and the
counsel and
disclosed that
chemists would
many
are,pre-
capable
examining
analyzing
court because
times we
be
pared
morning
dangerous
start an
substances
evidence.
testi-
analysis
mony, however,
prob-
on a case and we will re-
neither solved the
subpoena
presented by
ceive a
call to come
or.
lems
the State’s witness nor
testimony.
court and we have to defer this to a
contradicted his
COURT:
LSD,
“BY THE
of cocaine
two
these
problems with
any
there
case, are
in this
drugs involved
“The
relationship to
area
drugs in this
type
problems,
are there
major
or
Attorney’s question? With
the District
given to a
analysis if
any problems in
in this
involved
narcotics
type of
does it
Or
attorney to examine.
defense
case?
quantity
amount
depend
drug involved?
*6
narcotic
quantity?
referring
you
to
“A. Are
is
evidence
have as
quantity we
“A.
drugs,
these two
No,
type of
as
“A.
factor,
question
important
there
an
drugs.
types of
easy
iden-
to
drugs are
that. Some
about
are not.
and some
quantities
tify in small
“BY MR. UDDO:
important
an
play
quantity
would
So
object
question
“I
because
arewe
factor.
drugs
here
concerned
with all
rather than
case,
“Q.
quantity
specific drugs
play
important
in this
Does
Su-
LSD,
preme
drugs
factor in
say
from
stand-
cocaine and
did
point
any
drugs,
allegedly
if
specific
charged
of
I think
in this case?
going
question
are
this
to treat
we
no;
quantity
“A.
In
cocaine
LSD
objectively
drugs.
have to treat
for all
important
factor because
usually microgram quantities.”
LSD
“BY THE COURT:
infra,
going
For reasons stated
we are
to
put
“I will
in this record whether or not
peculiar.facts
restrict this
to
own
matter
its
any
problems
particular
there are
with
circumstances;
going
and
to
we are also
re-
types
drugs
of
cocaine and LSD.
of
strict our order to the defendant and his mo-
you
expound
drug
If
to
on the entire
want
Independent
tion for
Examination of Evi-
allegedly
you may,
types of
field
but
Therefore, we
dence—Cocaine and LSD.
drugs
case are cocaine
involved
judge’s ruling
find no error in the trial
LSD,
to
and
and I want
know
types
alleged drugs
these
problems
involved
this case.
types
drugs.”
295,
La.
250
(Murder),
In State Hunter
v.
objected to
(1967),
273
the State
objected
195 So.2d
for the defendant
Counsel
requested
furnishing extensive information
judge’s
and reserved
plead-
defendant,
hearing on
after a
objection was
exceptions when the
bill of
State
ings, the trial
ordered
then adduced from
The court
overruled.
weap-
following
testimony:
(1)
items:
Major
furnish the
following
Koch
735
736
pre-
inspect
for
allegedly used in the homicide
his written confession
before
inspection;
copy
Dorsey, supra
all written
(2)
trial
trial.
State v.
See
[207
defendant;
928,
Tune,
273];
22
confessions or statements
La.
So.2d
State v.
203,
881;
or state-
13
gist of all oral confessions
A.2d
(3) 98
74 Harv.L.
N.J.
940,
posses-
However,
ments;
photographs
all
Rev.
we have stead
(4)
inspection;
pre-trial
fastly
holding
refused
sion of
State
to broaden
into
pre-trial discovery
clothing
physical
evidence
full
(5) all
the varied items
inspection;
(6)
informa-
correct
of evidence in criminal cases. See State
station
police
Johnson,
950,
as to
location
v.
249 La.
Rule No. 16 was
Mastrobuono,
evidence,
F.Supp.
ficient
as testified
amount of
United States
;
by
Koch, supra,
to an
defendant should
(1967)
government
Major
consented
independent
of evidence
to make
exami
examination
be allowed
trial
must
allowing
qualified
chemist to make
nation of evidence. The
guidelines
appropriate
finds
analysis
samples of
LSD set
which he
of available
under
instant facts and circumstances.
involved.
above,
quarrel
there has
find no
with the defendant’s
From the
we see
We
guilt
innocence de-
tendency in the federal courts and in
statement
been
pends upon
commenting
prior
the identification of the sub-
jurisprudence
holdings
in his
stated that the
stances
Cocaine
of this Court
“ * * *
grant
However,
fit to
have
been
since we see
LSD.
dictated
vital con-
Independent Ex-
siderations
motion for an
related to fair
defendant’s
balance in crimi-
necessity
procedure
Evidence,
nal
protection
there is
and the
amination of
public against
ravages
issues
to discuss
constitutional
us
of crime.”
submitted.
rationale
decision
Jackson
Mississippi,
State of
assigned,
ruling of
For the reasons
should, in respectfully have the evi- dissent. advance whole I