State v. ThomasState v. Thomas
On April 30, 1978, an altercation erupted between defendant Wayne D. Thomas and Maurice Green. Green retreated from the scene. Tyrone Hill (Green‘s cousin) and Reginald Wilson (Hill‘s cousin) witnessed the altercation and, apparently concerned about Green‘s safety, proceeded towards Green‘s residence. Before reaching their destination, however, Hill and Wilson encountered Thomas, now armed with a rifle, and defendant Merlin Renard (Thomas‘s cousin), who carried a handgun. Thomas and Renard opened fire, killing Hill and wounding Wilson.
In June 1978, Renard and Thomas were both charged by grand jury indictment with
ASSIGNMENT OF ERROR ONE:
The defendants argue that, based on the absence of “critical portions of the transcript,” their rights to appeal, due process, and effective assistance of counsel have been violated. The state constitution provides that “[n]o person shall be subjected to imprisonment... without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.”
In this case, the record contains a transcript of the evidentiary portion of the trial, but does not contain a transcript of the voir dire, jury instructions, or opening and closing arguments. Because the missing portions of the trial record are not evidentiary, their absence does not compromise the defendants’ constitutional right to a judicial review of all evidence. Moreover, the minute entry of the trial does not indicate that the defense raised any objections during these proceedings.5 Thus, the record before us is adequate for full appellate review. State v. Francis, 345 So.2d 1120, 1125 (La.), cert. denied, 434 U.S. 891, 98 S.Ct. 267, 54 L.Ed.2d 177 (1977). Accordingly, this assignment of error is without merit.
ASSIGNMENT OF ERROR TWO:
At trial, Wilson testified that Thomas carried a rifle and Renard carried a handgun.6 However, a supplemental report written by the investigating police officer, Detective Charles Schlosser, Jr., indicated that Wilson said Thomas was armed with a handgun and Renard was armed with a rifle. Based on this discrepancy and in light of the fact that no pellet was recovered from Hill‘s brain and it could not be determined whether Hill was shot by a rifle or a handgun,7 the defendants contend that the State withheld exculpatory evidence in failing to provide a copy of this supplemental report pursuant to defense discovery
Upon request of the defendant, the State must produce exculpatory evidence, i.e. material evidence favorable to the defense which supports innocence. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Banks, 446 So.2d 497, 500 (La.App. 4th Cir.1984). Although unlimited discovery of police investigatory files is not required, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), a witness‘s statement which is incorporated into official investigatory reports is discoverable when the witness signs or otherwise adopts the statement or when it is “a substantial verbatim recital of the witness‘s words.” State v. Banks, 446 So.2d at 501 (citations omitted).
In this case, the supplemental report does not contain any statements made by Wilson which were adopted by him9 or which were a “substantially verbatim recital” of his words10 and therefore could not have been used to impeach his credibility. In any event, statements by both defendants which were admitted at trial, as well as Renard‘s testimony at trial, corroborated the fact that Thomas carried the rifle and Renard carried the handgun. In light of this evidence, the supplemental report cannot be deemed Brady material. Accordingly, this assignment is without merit.
ASSIGNMENT OF ERROR THREE:
Although transcript of the jury instruction is not available, the defendants contend that the jury instructions given by Judge Frank Shea at the time of this trial were violative of Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). Based on this contention, the defendants argue that the trial court incorrectly defined reasonable doubt in its jury instruction and that their counsels were ineffective for failing to object to the jury instruction.
Because there is no indication in the record that a contemporaneous objection was made to the jury instructions, this issue is not preserved for appeal. State v. Berniard, reh‘g en banc per curiam, 625 So.2d 217, 220 (La.App. 4th Cir.1993). As to the defendants’ ineffective assistance of counsel argument, this court rejected the same argument in State v. Wolfe, 630 So.2d 872, 883-884 (La.App. 4th Cir.1993), “[b]ecause at the time of trial, this jury instruction had been upheld by the Louisiana Supreme Court, any objection made by counsel would have been a vain and useless act and counsel was not “deficient” for failing to object.” See State v. Taylor, 410 So.2d 224, 225 (La.1982) (upholding Cage instruction). The trial counsel‘s professional decision to object or not object can only be viewed in accordance with the law as it was enunciated at the time of the trial and should not be deemed deficient in light of the hindsight created by the Cage decision. Accordingly, this assignment is without merit.
ASSIGNMENT OF ERROR FOUR:
Finally, Renard contends his counsel was ineffective for failing to object to his appearance in court in prison clothes. Compelling a criminal defendant to stand trial in readily identifiable prison attire over his express objection infringes upon his presumption of innocence and constitutes a denial of due process. State v. Spellman, 562 So.2d 455, 456 (La.1990) (citations omitted). However, in accordance with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Renard must show that, in failing to object, his counsel‘s performance was deficient and that the deficiency was prejudicial. If the claim fails to satisfy either of the Strickland criteria, the court need not address the other. State v. Martin, 624 So.2d 448, 450 (La.App. 4th Cir.1993).
The record reflects only that Renard wore a “yellow jumper” at trial and that no objection was raised as to his appearance in prison clothes. Even accepting the “yellow jumper” as identifiable prison garb, Renard fails to show the requisite prejudice or demonstrate that the verdict would have been different had defense counsel objected to the prison clothes. Wilson, the surviving victim, identified Renard as one of the perpetrators. Renard admitted on the witness stand that he, along with Thomas, fired shots in the direction of Hill and Wilson. Police officers testified that, shortly after the incident, Renard and Thomas admitted in statements that they retrieved guns and fired them at the victims. In light of this evidence, it does not appear that counsel‘s objection would have affected the outcome of the trial. Therefore, Strickland is not satisfied and this assignment of error is without merit.
For the foregoing reasons, we affirm the defendants’ convictions and sentences.
AFFIRMED