Petition — Atkins v. Louisiana

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-707

W. D. ATKINS, IR.,

Petitioner,

versus

STATE OF LOUISIANA,

Respondent.

On Application for a Writ of Certiorari

to the Supreme Court of Louisiana

PETITION FOR WRIT OF CERTIORARI

Risley C. Triche

TRICHE, STERNFELS & NAIL

Attorneys at Law

P.O. Drawer 339

Napoleonville, LA 70390

Telephone: [504] 369-6168

Attorneys for Petitioner

SCOFIELDS’ QUALITY PRINTERS, P. Oo. BOX 53096, N. O. LA. 70153 - 604/822-1611

OPINIONS BELOW

TABLE OF CONTENTS

GROUNDS ON WHICH SUPERVISORY

JURISDICTION INVOKED

QUESTIONS PRESENTED FOR REVIEW

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR ALLOWING THE WRIT

1.

The Supreme Court Of Louisiana Has

Decided An Issue Of Constitutional

Law In Conflict With The Terms Of

The Sixth And Fourteenth

Amendments To The Constitution ...

The Supreme Court Of Louisiana Has

Decided An Issue Of Constitutional

Law In Conflict With The Notice Re-

quirements Of The Sixth And

Fourteenth Amendments To The Con-

r he tees dhaae oe

The Refusal On Rehearing To Reverse

The Judgment Based On A Verdict Of

Five Of The Six Persons On The Jury

Disregarded This Court’s Opinion In

Balle v. Georgia, 98S.Ct. 1028 (1978)

The Louisiana Supreme Court Has

Not Properly Applied The Rule Of

Thompson v. City of Louisville And In

Re Winship Which Requires The Ex-

TABLE OF siento (Continued)

Page

istence Of Proof Of Every Fact Essen-

tial To Constitute TheCrimeCharged ..... 22

ORIEN iit. Rds var ». ͤ \emeseeeses 25

CERTIFICATE OF SERVICOEgEze 25

. RRM EES oe ek «ey ater on a ee Se la

TABLE OF AUTHORITIES

Ballew v. Georgia. U.S.. 98 S.Ct. 1028

ann 1415.20.21

Duncan v. Louisiana, 391 U.S. 145 (1968) ......... 20

In Re Ruffalo, 390 U.S. 544 (196889õ ))) 19

Johnson v. Louisiana, 406 U.S. 356 (1972) ..... 20,21

State v. Anthony, 166 La. 793, 117 So. 921

f ./ / ĩ ͤ K 18

State v. Passman, 345 So. 2d 874 (La. 1977) 18

State v. Roche, 341 So. 2d 348 (La. 1976) ........... 18

State v. Taylor, 347 So. 2d 172 (La. 1977) .......... 18

Thompson v. City of Louisville, 362 U.S. 199

)%/%f⁵Ü—m ¼. . ˙ ̃ͤv ; 22,24

Ungar v. Sarafite, 376 U.S. 575 (1964) ............. 15

Williams v. Florida, 399 U.S. 78 (1970) ......... 20,21

, A bop Sc Kee ee nace 3

„ «⁰˙¾¾. Ne PN hiss ·· Sewse-wa arenes oe ee 5,15

SR an Ue OE. CAG CURRED aces TERCRN Wea BES e sees 17

La.C.Cr.P., Art. 782, as amended by Art. 1975,

/ % ¶ ũũũ Mi ͤↄ gę ' 21

iii

TABLE OF AUTHORITIES (Continued)

Page

Bi; So Gs WAI SID Cinco dc bewdveccuuv we céceee 23

, ̃ ER Bata tp ee EOE tS I ee 4

s,, ̃ ... Pa ee 5

Sixth Amendment, United States Constitu-

T. 0 ssc Btamaaethsiox 3.4. 15.18.21

Fourteenth Amendment, United States Con-

o cnc cad emus hase 4,15,18,19,20,21

West’s Ann. Cal. Pen. Code §§1334-1334.6 ......... 17

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

W. D. ATKINS, JR.,

Petitioner,

versus

STATE OF LOUISIANA,

Respondent.

On Application for a Writ of Certiorari

to the Supreme Court of Louisiana

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE CHIEF JUSTICE OF THE

UNITED STATES AND THE ASSOCIATE JUS-

TICES OF THE SUPREME COURT:

W. D. Atkins, Jr., through his undersigned counsel,

respectfully petitions this Honorable Court for a writ

of certiorari to review the opinion and judgment of the

Supreme Court of Louisiana, rendered on June 19, 1978

in these proceedings numbered 61,156 of the — of

the Louisiana Supreme Court.

2

OPINIONS BELOW

The opinion of the Supreme Court of Louisiana is

reported at 360 So.2d 1341-48, a copy of which is annex-

ed hereto as Appendix A. There is no published opin-

ion of the Fifteenth Judicial District Court for the

Parish of Lafayette, State of Louisiana, in which this

criminal case was tried.

GROUNDS ON WHICH SUPERVISORY

JURISDICTION INVOKED

The judgment of the Supreme Court of Louisiana

was rendered on June 19, 1978. A copy thereof is annex-

ed hereto as Appendix A.

A timely petition for rehearing was denied on July

26, 1978. The denial of rehearing is not published. A

copy of the order denying rehearing of this appeal is

annexed hereto as Appendix B.

On July 28, 1978, Honorable Joe W. Sanders, Chief

Justice of the Supreme Court of Louisiana, stayed ex-

ecution of the decree of the Supreme Court of

Louisiana for a period of ninety (90) days from July 26,

1978, to permit petitioner to obtain review by this

Honorable Court of the proceedings had in the court of

the State of Louisiana. Petitioner respectfully re-

quests that the Clerk of this Honorable Court issue to

the Clerk of the Supreme Court of Louisiana a cer-

tificate that this petition is timely filed so that the stay

previously granted will be made to continue in effect

pending the hearing and determination of this cause

by this Honorable Court. The Stay Order is annexed

hereto as Appendix C.

3

Jurisdiction of this Honorable Court to review the

judgment and opinion of the Court below upon a peti-

tion for a writ of certiorari is conferred by 28 U.S.C.

§1257(3).

QUESTIONS PRESENTED FOR REVIEW

1. Whether the denial of petitioner’s motion for a

continuance of the trial in order to obtain the

testimony of a crucial defense witness denied due

process of law to petitioner.

2. Whether the filing of a bill of particulars on the

day of the trial, setting forth as a theory of this

prosecution amounts over and beyond the amount set

forth in the indictment and alleging different means

by which the alleged theft was allegedly accom-

plished, denied petitioner’s right to due process, in-

cluding sufficient notice in advance of the trial of the

nature and cause of the accusation as to be able to

prepare a defense against the added allegations.

3. Whether the verdict, based upon the affirmative

vote of only five of the six jurors involved, comports

with due process of law.

4. Whether there was any proof of all of the essen-

tial elements of the alleged theft.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment to the United States Con-

stitution provides:

4

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and dis-

trict wherein the crime shall have been com-

mitted, which district shall have been

previously ascertained by law, and to be in-

formed of the nature and cause of the accusa-

tion; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have

the assistance of counsel for his defense.

The Fourteenth Amendment to the United States

Constitution, in relevant part, provides:

nor shall any State deprive any person

of *** liberty, or property, without due

process of law * .

La. R.S. 14:67, in relevant part, provides:

Theft is the misappropriation or taking of

anything of value which belongs to another,

either without the consent of the other to the

misappropriation or taking, or by means of

fraudulent conduct, practice, or repre-

sentations. An intent to deprive the other per-

manently of whatever may be the subject of

the misappropriation or taking is essential.

* * *

Art. 709, La. C. Cr. P., provides:

A motion for a continuance based upon the

absence of a witness must state:

(1) Facts to which the absent witness is ex-

pected to testify, showing the materiality of

the testimony and the necessity for the pres-

ence of the witness at the trial;

(2) Facts and circumstances showing a

probability that the witness will be available

at the time to which the trial is deferred; and

(3) Facts showing due diligence used in an

effort to procure attendance of the witness.

STATEMENT OF THE CASE

Petitioner is an attorney who was accused and con-

victed of theft of his client’s funds.

Originally, the client, Mrs. Pamela B. Gray, retained

the ~ervices of Mr. Lucius A. Hornsby, Jr., Esquire, an

attorney, to represent her in aclaim arising out of the

death of her husband from whom she was legally

separated but not divorced at the time of the husband's

death. The client entered into a contract with interest

in the cause of action, pursuant to La. R.S. 37:218, and

that contract was filed and recorded in the Office of the

Clerk of the United States District Court for the

Western District of Louisiana, thereby creating a lien

in the interest of Mr. Hornsby.

The client subsequently retained the services of

petitioner, who reached an agreement with Mr.

Hornsby to withhold from any settlement or judgment

on behalf of the client the expenses advanced by Mr.

Hornsby to or on the client’s behalf and the previous

contract with Mr. Hornsby was agreed to be null and

void.

Petitioner made advances to the client, paid the ex-

penses of investigation of the cause of action, etc., and

paid some personal expenses of the client during the

pendency of the settlement in this case. Petitioner

committed himself to pay other expenses on behalf of

the client when the settlement was obtained.

After much negotiation with claims people from

CNA Insurance Company, petitioner negotiated a

settlement of $82,500.00 (of which $15,000.00 was to go

to the questionable child of the decedent) and a waiver

of contribution by the client of the several thousand

dollars obtained from the Workmen’s Compensation

insurance carrier. The total dollar value of the settle-

ment was $89,517.73.

Paragraph 4a of the contract of employment with

petitioner contained the following fee provisions:

c. In the event this matter involves a claim

under the Workmen’s Compensation Act,

or similar law, that amount provided for

therein shall be the fee, provided however,

that in the event of a third party action

arising out of such case, client“ agrees to

pay attorney one-half of the “gross

amount” collected, which “gross amount”

specifically includes that amount, if any,

7

paid as reimbursement for compensation

or medical expenses to client's“

employer, whether settled, suit is filed, or

appeal is taken.

d. “Gross amount” is hereby agreed between

the parties to mean any funds recovered by

attorney on behalf of client for any reason,

which is to be paid to client, or which is to

be paid to any other person, firm, corpora-

tion, or insurance company as reimburse-

ment of amount paid for any reason.

Petitioner also recorded his contract with an in-

terest in the cause of action, filing same in the Court in

which the suit was pending on behalf of the client.

Thus, two recorded contracts with interest in the suit

were on file in this case. The attorney for the insurance

company and other defendants thus called Mr. Lucius

A. Hornsby, Jr., to inquire about his position with

regard to his recorded contract. That attorney advised

the defense attorney that he was entitled to participate

in the settlement negotiations and the settlement of

the case. That attorney then promptly filed suit in in-

tervention on the client’s cause of action for his one-

third fee stipulated in his recorded contract. This

brought the settlement negotiations to a standstill

until petitioner furnished the following indemnity

agreement to the insurance company:

8

January 28, 1975

Mr. Don R. Long

Claims Representative

CNA Insurance Company

804 Jefferson Street

Lafayette, Louisiana 79501

Re: Pamela B. Gray

Dear Sir:

In accordance with our agreement to settle

this matter, and in reference to the claims for

attorney's fees by attorney Lucius Hornsby:

I hereby agree to indemnify, hold harmless,

and to defend all parties released herein by

Pamela B. Gray, including, but not limited to

CNA Insurance Company, Fidelity & Casual-

ty Company, Pennzoil United, Inc., Coating

Specialists, Inc., Pennzoil Producing Com-

pany, Pennzoil Company, and the officers and

directors thereof, in any claim brought by

Lucius A. Hornsby, Jr., arising out of his prior

representation of said Pamela B. Gray,

against any of the above parties, and agree to

pay in full any and all amounts obtained, if

any, by said Lucius A. Hornsby, Jr., by way of

settlement, judgment, or otherwise, together

with any costs, interest, attorney fees, and

costs of defense.

Please advise immediately of any action

taken by Mr. Hornsby, so that I may take

whatever action is appropriate.

Sincerely,

s W. D. ATKINS, JR.

W. D. Atkins, Jr.

* 7 * *

On the basis of petitioner's personal indemnifica-

tion, the insurance company agreed to resume the

settlement negotiations.

The settlement on behalf of the minor child and the

estate of the deceased husband was administered in

the State Court. On February 3, 1975, the client was

called to petitioner's office to execute the various

forms which were required for her to become the tutrix

for the minor child and to release the various defen-

dants in the pending civil action. She signed these

forms in the presence of petitioner’s investigator and

secretary. Among the forms she signed was an agree-

ment to deposit her share of the settlement funds with

petitioner, with interest to accrue thereon at the rate of

8% per annum, pending the settlement of the interven-

tion claims pending in the suit. In addition to Mr.

Hornsby’s intervention, the parents of the client's

deceased husband intervened for the full recovery.

The insurance company agreed to pay them $5,000.00

to compromise their claim in intervention, over and

beyond the compromised settlement with petitioner's

client. Prior thereto, however, the insurance company

had required of petitioner the same type of indemnity

it required with regard to Mr. Hornsby’s claim in in-

tervention. Petitioner personally indemnified the in-

surance company with regard to that latter claim.

That claim, however, was settled by the insurance

company and the defendants were released by the

deceased's parents four days after the settlement with

petitioner's client.

On the day following the settlement with petitioner

and his client, petitioner issued to the client acheck in

10

the amount of $400.00. On February 12, 1975, he gave

the client an additional $200.00. And on February 18,

1975, petitioner gave his client a check for $6,000.00.

According to the client’s testimony at the trial of this

cause (as well as on the civil proceedings), the client

said she was not permitted to read the papers she sign-

ed, including the agreement to permit petitioner to

hold the funds until all claims were settled. She did

acknowledge her signature on the said agreement. The

reason allegedly given for this refusal to allow her to

read the documents was that there was inadequate

time to do so before they were due in court.

Significantly, there was time on that occasion for the

client to write out a full-page renunciation of a

previous agreement with a third party which was to

have become due when the settlement was paid. The

client had agreed to purchase a house from another

person and to make an $11,000.00 down payment

thereon out of the settlement proceeds. Meanwhile,

she lived in the house and was supposed to have paid

rent, but reneged also on that agreement. The client

testified that the Court explained the agreement in

release of the insurance companies and other defen-

dants in the civil action. The deposit agreement

be n petitioner and the client was not shown to

have Been among the papers presented to the Court.

The client endorsed the check and gave it to

petitioner. Petitioner co-endorsed it and deposited it in

a bank account in Baton Rouge, Louisiana. The $6,-

600.00 previously mentioned was drawn out of that ac-

count on February 4, 12 and 18, 1975. For some reason

not explained in the testimony, other than that she had

11

trouble communicating with petitioner and getting

money from him, petitioner decided to see yet another

attorney. She saw Mr. Robert Wright, Esquire, and

gave him a long story, which Mr. Wright put in writing

for her and sent to petitioner in the form of a demand

letter. Petitioner was given a period of 24 hours to pay

over to the client the balance of the settlement after

fees and expenses were deducted, without concern that

petitioner had personally indemnified the civil defen-

dants against loss resulting from a judgment in favor

of the intervenor, Hornsby. Petitioner was in Mexico

at the time of the arrival of this letter. When he return-

ed, he not only found the demand letter waiting for

him; the client had also submitted a complaint to the

Louisiana State Bar Association and Mr. Wright had

filed suit on her behalf against petitioner, demanding

the full settlement award without reduction for fees or

anything else.

At that time, petitioner became hostile toward his

client and refused to pay over any other money. At a

deposition on the civil action, he furnished to the

client’s new attorney, Mr. Wright, a worksheet show-

ing that after deduction of his fees and expenses and

obligations to pay the client’s debts from the settle-

ment award the client was due only $20,373.40, which

he was holding as a deposit for the payment of Mr.

Hornsby's attorney's fee if he should prevail on the in-

tervention. There was an additional amount of $2,-

500.00 withheld as cash and fee for defending the in-

tervention suit by Mr. Hornsby, which was added to

the costs and expenses on the client's behalf if she was

not going to live up to the agreement to deposit the

funds with petitioner pending the Hornsby litigation.

12

The deposit agreement contained the agreement by

petitioner not to charge a fee for defending the

Hornsby intervention suit.

On the above evidence, the jury, by a vote of 5-1,

returned a verdict of guilty of theft of property of $24,-

122.76. These figures cannot be completely squared

with the evidence but appear to be the sum of the $20,-

373.40 withheld as Hornsby’s fee if he should prevail,

the $2,500.00 charged the client in contradiction to the

terms of the agreement to allow the petitioner to hold

and invest the funds with an 8% guaranteed return on

her investment, and $1,199 which represented an un-

paid dental bill which was due and accounted for in the

itemization of amounts paid out and due on behalf of

the client. The total of these figures is $24,072.40; $50.32

difference from the amount declared in the verdict.

At the scheduled trial date on January 18, 1977, the

State’s witness, Pamela B. Gray, who was sub-

poenaed failed to appear. The trial was re-scheduled

over the petitioner's objection. When this matter was

scheduled for trial on March 8, 1977, adefense witness,

Mrs. Jeanette Deshotels, who had been subpoenaed but

not served on January 18, 1977, was absent. That

witness had been located after extensive investiga-

tion. She was in California where her husband was

scheduled on the trial date to have his stomach remov-

ed. The defense had only recently located her; had not

had time to go through the procedures for obtaining

this out-of-state witness for trial; and had obtained an

agreement from the witness to testify on petitioner's

behalf in contradiction of the testimony of petitioner's

client that she had not been allowed to read the

13

documents signed by her at the petitioner's office on

February 3, 1975. The defense informed the Court that

its absent witness was expected to so testify and to fur-

nish evidence of the client’s understanding of these

documents. The defense outlined its diligent effort to

locate and secure the presence of this witness, the

agreement to testify and the sudden unexpected ill-

ness of her husband which prevented her from attend-

ing. The witness sent a telegram in which she agreed

to testify after her husband's recovery from surgery.

The Trial Court overruled petitioner’s motion and this

issue was presented to the Louisiana Supreme Court

on appeal. That Court held petitioner's motion for a

continuance to be without merit because the witness

had not been subpoenaed to attend the trial on March 8,

1977. Petitioner contends this ruling deprived him the

right to compulsory process of a favorable witness

who was essential to his defense.

Five days before the scheduled trial of this case,

after petitioner’s numerous objections that the bill of

particulars provided by the State was inadequate to

state the nature and cause of the accusation against

him, the State filed a lengthy bill of particulars.

Petitioner objected that bill of particulars, too, was in-

adequate to charge an offense over which the District

Court for Lafayette Parish had jurisdiction. On the day

of the trial, the State filed yet another amended bill of

particulars, adding to the aggregate amount of the

theft alleged in the indictment a $1,199 unpaid doctor

bill and alleging different means of alleged theft with

respect to this and other funds. The defense renewed

its previous objections to the sufficiency of the bill of

particulars. The Court overruled that objection and

14

proceeded to trial. While acknowledging that the

State’s original answers to the petitioner’s motion for

a bill of particulars “provided little information

relating to the acts which constituted the theft,” the

Louisiana Supreme Court held that the amended bill

filed several days prior to trial sufficiently informed

the defense of the nature and cause of the accusation

“to enable him to identify the alleged criminal trans-

action and to prepare a defense.” 360 So.2d at 1345.

The Louisiana Supreme Court did not address the

specific objectionable amended bill of particulars on

the appeal or on the petition for rehearing.

Petitioner filed a motion for a new trial, urging that

there was no evidence of a fraudulent taking by defen-

dant or a specific intent to permanently deprive the

client of the funds of the settlement. The client’s agree-

ment with petitioner was in evidence. The evidence

showed that petitioner was not even present when the

client executed the documents in connection with the

settlement and the tutorship of the child. The evidence

showed that the client endorsed the draft and handed it

over to the petitioner voluntarily. The withdrawal of

the funds were authorized by the agreement. And

when the client’s new lawyer filed suit, petitioner of-

fered to settle in excess of the amount claimed to have

been stolen. Petitioner made an offer to settle of $30,-

000.00. The Supreme Court of Louisiana, without de-

tailing any evidence whatsoever, saying only that

“Our review of the record indicates that the State

presented at least some evidence of each of the essen-

tial elements of the offense * * *.” 360 So.2d at 1348.

On rehearing, petitioner raised the jurisdictional

issue, pursuant to Ballew v. Georgia. U.S. 98

15

S.Ct. 1028 (1978), that the 5-1 verdict in this 6-man jury

trial was a deprivation of due process. The Louisiana

Supreme Court denied the petition for a rehearing of

this appeal.

REASONS FOR ALLOWING THE WRIT

1. The Supreme Court Of Louisiana Has

Decided An Issue Of Constitutional Law In

Conflict With The Terms Of The Sixth And

Fourteenth Amendments To The Constitu-

tion.

It is conceded that under Art. 709, La.C.Cr.P., and un-

der the Sixth and Fourteenth Amendments to the Con-

stitution, the trial judge has discretion whether to

grant a continuance on the ground of the absence of a

material witness. Ungar v. Sarafite, 376 U.S.575 (1964).

We also concede that Art. 709, La.C.Cr.P., as written,

provides adequate guidance to trial judges to proper-

ly exercise their discretion in ruling on such motions.

Petitioner herein contends that the statute was ap-

plied against him in a manner which will not comport

with due process of law and that the Trial Court

therefore abused its discretion in this case.

As set forth in the Statement of the Case, ante, the

petitioner's attorney had subpoenaed Mrs. Jeanette

Deshotels to appear as a defense witness at the sched-

uled proceedings on January 18, 1977. The Sheriff was

unable to locate and serve the witness. The

prosecution’s main witness was also absent that day.

The State moved for, and obtained, a continuance over

the petitioner’s objection. By March 8, 1977, the said

16

defense witness had been located and had agreed to

appear and to testify without a subpoena. A sudden

family emergency prevented her from doing so. On the

evening before the trial she so notified defense counsel

via long distance telephone call and followed that with

a telegram explaining her inability to attend and

assuring her testimony at proceedings scheduled

after her husband's recovery from the unexpected sur-

gical emergency.

Mrs. Deshotels’ appearance was necessary only if

Mrs. Pamela B. Gray testified that she was not given

an opportunity to read and did not understand the im-

port of the agreement to allow petitioner to hold the

settlement funds pending the solution of the interven-

tion suits filed in her suit. The defense was therefore

ready to proceed without her in January, when Mrs.

Gray was also absent, and not in March, when Mrs.

Gray was present and testified.

Other witnesses to the discussions surrounding the

signing of these agreements and other papers were

Mrs. Dorothy Roussell and Mr. Elton J. Dugas. Mrs.

Roussell was a former secretary who did not

remember the transaction; Mr. Dugas was petitioner's

investigator, who brought the case to petitioner's of-

fice, and he subsequently became hostile toward

petitioner for reasons which do not appear in this

record. Mrs. Deshotels was the only unbiased witness

who recalled this transaction.

The Louisiana Supreme Court’s two reasons for

affirming the judgment of conviction in the absence of

Mrs. Deshotels’ testimony were that the witness was

17

not under subpoena and her testimony would have

related to an inadmissible conclusion that Mrs. Gray

understood the terms and reasons for the agreement to

allow petitioner to hold the funds.

Under the circumstances of this case, where Mrs.

Deshotels was located in California oniy days before

the scheduled trial, there simply was not time to sub-

poena her under Art. 741 et. seq., La. C. Cr. P.,

Louisiana’s statute adopting the Uniform Act to

Secure the Attendance of Witnesses from Without a

State in Criminal Proceedings. Following the location

of the witness, the defense would have had to prepare a

petition to the Louisiana courts; get a hearing on that

petition; prepare a certificate for signature by the

Louisiana judge that the witness was essential in

these proceedings; present that petition to the Califor-

nia courts; have process served on the witness; and

have a hearing in the California courts. Art. 741, La.

C.Cr.P.; West’s Ann. Cal. Pen. Code §§1334-1334.6.

Counsel, in the exercise of due diligence, did the next

best and most practicable thing. He secured the agree-

ment of the witness to appear without a subpoena. Un-

der the circumstances of the witness’ sudden family

emergency, viz., her husband’s emergency need for

stomach surgery, we submit the Trial Court abused

whatever discretion it had in this matter and denied

petitioner the benefit of compulsory process of an es-

sential witness. As to the competency of Mrs.

Deshotels’ testimony, she could have testified to the

circumstances on which she would have based her

opinion that Mrs. Gray understood the nature of the

documents, i.e., what was said to Mrs. Gray and what

Mrs. Gray said. She could have refuted Mrs. Gray's

18

testimony that she was not permitted to read the

papers and their content was not explained to her. The

conclusion sought to be elicited from Mrs. Deshotels

was a natural inference to be drawn from her observa-

tion of the signing proceedings. She was competent to

testify to that. State v. Taylor, 347 So.2d 172 (La. 1977);

State v. Passman, 345 So.2d 874 (La. 1977); State v.

Roche, 341 So.2d 348 (La. 1976); State v. Anthony, 166

La. 793, 117 So. 921 (1928).

The Sixth and Fourteenth Amendments to the Con-

stitution give a defendant the right to compulsory

process of witnesses in his favor, subject only to

denial where the accused delays until the trial date to

secure the attendance of his witnesses and things of

that nature. The present case presents nothing like

that and requires reversal of the judgment below.

2. The Supreme Court Of Louisiana Has

Decided An Issue Of Constitutional Law In

Conflict With The Notice Requirements Of

The Sixth And Fourteenth Amendments

To The Constitution.

The State Supreme Court acknowledged in its opin-

ion that petitioner was furnished inadequate par-

ticulars until the amended bill of particulars was filed

on March 3, 1977. The objection was made to the sec-

ond amended bill of particulars which was filed on the

day of trial, March 8, 1977. That amended bill provided:

The State further amends its Answer to in-

clude the allegation that in addition to the

manner in which the Defendant stole the vic-

19

tim’s funds by withdrawing these funds from

the bank account, defendant did not in any

other fashion pay the money to which the vic-

tim was entitled and that Pamela Gray did not

consent to the theft.

In In re Ruffalo, 390 U.S. 544, 550-551 (1968), this

Honorable Court held that in a disbarment proceed-

ing the respondent could not be forced to answer

specifications which arose during the proceedings.

This Court quoted the opinion of the dissenting Circuit

Judge in that case, in which he said: Such procedural

violation of due process would never pass muster in

any normal civil or criminal litigation.“ We respect-

fully submit the same is true for this last-minute

change of the terms of the indictment.

Defense counsel was prepared to cross-examine the

witness on the issue of petitioner’s withdrawal of

funds from the bank account — the only previously

alleged means of the alleged theft. But when the means

were supplemented to include different modes of theft,

and then while the jury is waiting to be selected, does

not comport with the sense of justice and fair play

which even the most conversative construction of the

Fourteenth Amendment Due Process Clause would re-

quire.

For the foregoing reasons, this Court should granta

writ of certiorari and reverse the judgment below.

3. The Refusal On Rehearing To Reverse The

Judgment Based On A Verdict Of Five Of

The Six Persons On The Jury Disregarded

This Court’s Opinion In Ballew v. Georgia,

98 S.Ct. 1028 (1978).

The Louisiana jury trial scheme has been before this

Honorable Court on several occasions. In Duncan v.

Louisiana, 391 U.S. 145 (1968), this Court established

that a defendant in a state court, who is subject to

punishment in excess of six months imprisonment or

$500.00 fine is entitled to a trial by jury. In Williams v.

Florida, 399 U.S. 78 (1970), this Court held that the Due

Process Clause of the Fourteenth Amendment did not

require that juries be composed of twelve persons. A

six-man jury was approved. In Johnson v. Louisiana,

406 U.S. 356 (1972), this Court held that the require-

ment of unanimity, which existed under common law

at the time the Constitution was written, was not

necessary to due process under the Fourteenth

Amendment. In Ballew v. Georgia,. U.S., 98

S.Ct. 1028 (1978), this Court held the Georgia (and

Louisiana) five-man jury to be unconstitutional.

The present case presents the issue whether a six-

man non-unanimous jury can comport with due

process if a unanimous verdict by the same number of

jurors, i.e., five, would not.

In approving the 6-man jury in Williams, this Court

said (399 U.S. at 100):

*** But we find little reason to think that

these goals are in any meaningful sense less

21

likely to be achieved when the jury numbers

six, than when it numbers twelve — par-

ticularly if the requirement of unanimity is

retained. * * *

Following Johnson and Williams, the Louisiana

Legislature amended Art. 782, La.C.Cr.P., to provide,

in relevant part:

* * * Cases in which the punishment may be

confinement at hard labor shall be tried by a

jury composed of six jurors, five of whom

must concur to render a verdict.

Petitioner respectfully submits that Art. 782, La.

C.Cr.P., as amended by Art. 1975, ist Ex. Sess., No. 16,

§1, is unconstitutional as a violation of the cross-

- sectional and reasonable doubt requirements of the

Sixth and Fourteenth Amendments with regard to

jury trials.

It would be inconsistent that a unanimous verdict of

five persons would be any less worthy of constitu-

tional sanction than would a six-person jury retur-

ning a verdict by the same number of persons which,

in Ballew, was found inadequate to pass con-

stitutional muster. Under the Louisiana system of

jury trial post-Johnson, even the smaller jury has

been made non-unanimous. The jury in this case

convicted petitioner with only five persons con-

curring therein. This is squarely contrary to the dic-

tum in Williams that the smaller jury is acceptable if

unanimity is retained.

Since this Court has not previously decided this im-

portant point of constitutional law affecting the pres-

ent majority of jury trials in Louisiana, and possibly

in Georgia when its legislature attempts to provide for

the most conviction-prone jury which is con-

stitutionally tolerable, it should do so in this case.

4. The Louisiana Supreme Court Has Not

Properly Applied The Rule Of Thompson

v. City of Louisville And In Re Winship

Which Requires The Existence Of Proof Of

Every Fact Essential To Constitute The

Crime Charged.

Louisiana has interpreted the rule of Thompson v.

City of Louisville, 362 U.S. 199, 204 (1960), to require it

to rule on a motion for judgment of acquittal or a new

trial based on the absence of the required evidence

only in cases where the accused alleges there to have

been “no evidence” of an essential element of guilt.

This rule comports with the interpretation of Thomp-

son made by Federal Courts in habeas corpus cases

and is not questioned herein. Petitioner strongly con-

tests the declaration, without explanation, that a

review of the record in this case “indicates that the

State has presented at least some evidence of each of

the essential elements of the offense * * . 360 So. ad at

1348.

There was absolutely no evidence at all that, at the

time petitioner received the endorsed check from his

client, he had any intent to deprive her permanently of

the proceeds of her settlement. Petitioner was per-

sonally liable to the insurance companies and other

23

defendants in the civil suit for the payment of any

costs, attorneys’ fees and judgment obtained by an in-

tervenor in the suit. If petitioner had not had some

means of controlling the funds, he would have never

agreed to personally indemnify the defendants. It was

obvious during the negotiations that the client’s in-

demnification would not be adequate. In the civil suit

deposition, admitted in evidence herein, petitioner ex-

plained that the issue of his client’s right to recover, as

well as that of her minor daughter's rights, were very

tenuous. The deceased had filed suit for separation

alleging fault on the client’s part. Art. 2334, La. Civ.

Code, provides:

Actions for damages resulting from

offenses and quasi offenses suffered by the

husband, living separate and apart from his

wife, by reason of fault on her part, sufficient

for separation or divorce shall be his separate

property.

The minor child, according to the decedent’s suit for

separation, was not the issue of the client and the de-

ceased husband. The client had the child before her

marriage to the decedent. The decedent paid no

alimony or child support. In all legal likelihood, the

parents of the client’s deceased former husband were

entitled to the cause of action, not the client. Petitioner

sought to settle the suit on her behalf before the in-

surance companies, during discovery, learned of the

relationship existing between the deceased and the

client. Had petitioner not persuaded the client to go

along with the indemnity arrangement, with him hold-

ing the funds, the discovery would have commenced.

All of these things were contingent liabilities of

petitioner for which common sense dictated that he

protect himself. That is what he did when he entered

the agreement with the client and settled the suit.

As to an intention to permanently deprive the client

of the funds which were not delivered to her, petitioner

delivered a substantial amount more than the terms of

the agreement called for during the three weeks after

the suit was settled. He paid her $6,600.00. He had

agreed only to pay her the same amount weekly as she

had been receiving from Workmen's Compensation —

less than $200.00 per week.

The client precipitated her own troubles by reneging

on her agreement and seeking other counsel to coerce

petitioner to deliver to her the funds he was holding to

protect himself in the intervention cases.

We respectfully submit there was absolutely no

proof to justify this conviction and, as this Court said

in Thompson, supra:

if the evidence fails to prove all* * * elements

of this * * * charge, the conviction is not sup-

ported by evidence, in which event it does not

comport with due process of law.

25

CONCLUSION

For the foregoing reasons, this Court should grant

review of the judgment below upon a writ of certiorari,

after which it should reverse the judgments of the

Louisiana courts.

Respectfully submitted,

RISLEY C. TRICHE

TRICHE, STERNFELS & NAIL

Attorneys at Law

P. O. Drawer 339

Napoleonville, LA. 70390

Telephone: [504] 369-6168

Attorneys for Petitioner

CERTIFICATE OF SERVICE

I, Risley C. Triche, a member of the Bar of the

Supreme Court of the United States, certify that the

requisite number of copies of the foregoing Petition

for a Writ of Certiorari have been served on the At-

torney General of the State of Louisiana by mailing

three copies of same to him at his office in Baton

Rouge, Louisiana, this — day of October, 1978.

RISLEY C. TRICHE

Attorney at Law

— =.

la

APPENDIX A

SUPREME COURT OF LOUISIANA

NO. 61,156

STATE OF LOUISIANA

VERSUS

W. D. ATKINS, JR.

Appeal from the Fifteenth Judicial District Court,

Parish of Lafayette,

Honorable Hugh E. Brunson, Judge.

Filed: June 19, 197°

DENNIS, Justice.

Defenaant W. D. Atkins, Jr. was charged by short

form indictment with “a theft of $20,373.46 in U. S.

currency belonging to one Pamela B. Gray in violation

of the provisions of R.S. 14:67." Following a jury trial,

defendant was found guilty as charged and sentenced

to six years at hard labor. On appeal Atkins relies

upon ten assignments of error for reversal of his con-

viction and sentence.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant contends that the trial court erred in

denying his motion to quash the indictment, both as to

the indictment standing alone and as to the indictment

when considered in light of the state's answers to the

defendant's motion for a bill of particulars. He

2a

presents four specific arguments for our considera-

tion: (1) an essential averment was deleted from the

short form indictment because of the failure to specify

the value of the property taken; (2) the indictment and

bill of information failed to state an offense which oc-

curred within Lafayette Parish; (3) the indictment and

answers to the bill of particulars failed to provide the

defendant with adequate information concerning the

charges against him; and (4) a transcript of defen-

dant's deposition, taken in a civil case involving the

same parties and introduced by stipulation at the

hearing on the motion to quash, indicates defendant's

innocence of the charged offense.

We will consider the arguments in the order

presented:

(1) The defendant’s contention that the short form

indictment was fatally defective for failure to set forth

the value of the stolen property is unmeritorious. The

allegation that defendant was guilty of theft of 820,

373.46 in U. S. currency“ sufficiently fulfills the req-

uisites of the statutory short form indictment, since

the value of all stolen property must, of necessity, be

expressed in monetary terms.

(2) Defendant’s second argument in effect urges

that the prosecution was brought in an improper

venue because the indictment, along with the State’s

answers to the bill of particulars, does not allege that

any element of the charged offense occurred in the

parish where the trial was scheduled. La. C.Cr.P. art.

611. However, defendant’s motion to quash the indict-

ment did not contain an allegation that the venue was

3a

improper. La. C.Cr.P. art. 615. Nevertheless, even in

the absence of a motion to quash for improper venue,

the State must prove proper venue at trial beyond a

reasonable doubt. La. C.Cr.P. art. 615; State v. Frank,

355 So.2d 912 (La. 1978); State v. Dillon, 260 La. 215, 255

So.2d 745 (1971). While this Court may not weigh for

sufficiency the State’s evidence as to venue, when the

jury has determined the issue adversely to the defen-

dant by a verdict of guilty, we may, provided that the

issue is presented by the defendant’s motion for a new

trial, grant relief if there was no evidence whatsoever

as to the proper venue. State v. Dillon, supra; see also,

State v. Richard, 245 La. 465, 158 So.2d 828 (1963). In the

instant case, however, the defendant’s motion for new

trial contained no allegation that the State had failed

to prove that the proper venue of the charged offense

was Lafayette Parish. Moreover, our review of the rec-

ord indicates that there is substantial evidence that an

“act or element” of the offense of theft occurred in

Lafayette Parish. Defendant’s second contention

relating to the motion to quash lacks merit.

(3) Defendant contends that the trial court e d in

determining that the short form indictment and the

State’s answer and amended answer to the bill of par-

ticulars gave him sufficient information to prepare a

defense. Article I, §13 of the Louisiana Constitution of

1974 grants an accused the right to be informed of the

nature and cause of the accusation against him.” One

implementation of this constitutional guarantee is

Louisiana Code of Criminal Procedure Article 484,

which gives to a criminal defendant the right to re-

quire the district attorney to furnish a bill of par-

ticulars “setting up more specifically the nature and

cause of the charge against [him].” Although a defen-

4a

dant is not entitled by a bill of particulars to discover

the details of the evidence with which the State ex-

pects to prove its case, i and although the trial court is

vested with wide discretion in determining the suf-

ficiency of the State’s answers, 2 this Court has found

reversible error in the failure to provide information

of the nature and cause of the accusatior. against the

accused as required by the constitution. For example,

in State v. Miller, 319 So.2d 339 (La. 1975), in reversing

a conviction on these grounds, this Court set forth

some of the factors to be considered in determining

whether a defendant was given all of the information

to which he is constitutionally entitled:

“The state is required, upon defendant's mo-

tion, to provide a criminal defendant with

enough information so that he can identify the

criminal transaction. There is nc exact for-

mula which can be applied to every charge to

determine in a particular case whether a

defendant has all of the information to which

he is constitutionally entitled. In general,

however, the extent to which the bill should be

granted turns on the complexity of the case. If

the crime is a single event, such as a murder,

the scope of the bill will be less extensive than

it will be if the crime involved is a series of oc-

currences, such as tax fraud or bootlegging.

1 See, e.g., State v. Ford, 349 So.2d 300 (La. 1977); State v. O’Blanc

346 So.2d 686 (La. 1977); State v. Jenkins, 338 So.2d 376 (La. 1978):

State v. Marks, 337 So.2d 1177 (La. 1976). This rule was modified as

to future prosecutions by Act 515 of 1977.

2 State v. Huizar, 332 So.2d 449 (La. 1976); State v. Nelson, 306

So.2d 745 (La. 1975); State v. Vince, 305 So.2d 916 (La. 1975); State v.

Bailey, 261 La. 831, 261 So.2d 583 (1972).

5a

When a crime charged may be committed in a

number of different ways, this Court has

always recognized the accentuated need for

the state to furnish particulars. . Likewise,

when the crime involves not a single oc-

currence but a series of occurrences, the state

must supply enough information so that the

accused can identify each criminal transac-

tion. 319 So.2d at 340-1. [citations omitted]

In the instant case, the State’s original answer tothe

defendant’s motion for a bill of particulars provided

little information relating to the acts which con-

stituted the alleged theft. However, prior to trial, the

State amended its answers to provide a detailed sum-

mary of the manner in which the offense was com-

mitted. Defendant was informed that he was charged

with the theft of a specific amount of money from a

particular identified client between the dates of

February 3, 1975 and July 17, 1975 by taking them from

an account in the American Bank & Trust Company in

Baton Rouge which defendant had opened for the pur-

pose of safekeeping and investment of the funds.

Although the State could not inform defendant of the

exact time and manner of the taking the information

was specific enough to enable him to identify the

alleged criminal transaction and to prepare a defense.

Therefore, we find that defendant's contention relating

to the sufficiency of the answers to the bill of par-

ticulars is meritless.

(4) Defendant contends that the trial court erred in

failing to quash the indictment because the defen-

dant’s deposition, which was taken in connection with

6a

a civil action involving the victim of the alleged

offense and introduced by stipulation at the hearing on

the motion to quash, indicated that the defendant was

innocent of the charged offense.

The question of factual guilt or innocence of the

offense charged is not properly raised by the motion to

quash. State v. Rembert, 312 So.2d 282 (La. 1975). Fur-

ther, the only issue presented to the trial judge for his

consideration was whether the indictment charging

the defendant with theft was insufficient as a matter of

law or unconstitutionally vague. Since the instant ob-

jection was not contemporaneously urged, and since

the trial judge could not at any rate have properly con-

sidered the issue of guilt or innocence in such a

proceeding, defendant’s contention is insubstantial.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial court erred in fail-

ing to grant a motion for a continuance based upon the

absence of a material witness. La. C.Cr.P. art. 709,

which governs applications for continuance based

upon the unavailability of witnesses, provides:

“A motion for a continuance based upon the

absence of a witness must state:

“(1) Facts to which the absent witness is

expected to testify, showing the materiality of

the testimony and the necessity for the pres-

ence of the witness at the trial;

7a

“(2) Facts and circumstances showing a

probability that the witness will be available

at the time to which the trial is deferred; and

(3) Facts showing due diligence used in

an effort to procure attendance of the witness.”

In the instant case, the victim of the alleged theft was

a client of defendant, an attorney. The State’s theory of

the case was that defendant wrongfully misap-

propriated funds which he received as the proceeds of

a settlement between Mrs. Gray and an insurance

company following the death of her husband. Follow-

ing the settlement, Mrs. Gray and defendant entered

into a contract which allowed him to hold and invest

the proceeds, at his discretion, for a certain period of

time.

Prior to trial, defendant sought a continuance

because Janice Deshotels, his former secretary and a

witness to the signing of the contract, was absent from

the state and presently unavailable to testify at trial.

At the hearing on the motion, defendant’s counsel

stated that the witness, who was in California where

her husband had recently undergone surgery, would

testify that Mrs. Gray understood the contract and that

the defendant was not present when the contract was

signed, thereby refuting any charge of misrepre-

sentation which the State might make. Defendant's

counsel further stated that, although he had not issued

a subpoena to compel the attendance of Mrs.

Deshotels, he had only recently learned of her loca-

tion, and she had informed him by telegram that she

would appear in three to seven weeks.

8a

The trial judge, in his per curiam to the instant

assignment of error, stated that defendant’s failure to

subpoena Mrs. Deshotels indicated that the codal req-

uisite of due diligence had not been met; he further

stated that he believed that the witness’ testimony as

to Mrs. Gray’s understanding of the contract would be

inadmissible because the witness would be stating a

conclusion of law.

Our review of the record reveals no abuse of discre-

tion on the part of the trial judge which would con-

stitute reversible error under the prior decisions of

this Court.s The trial court’s finding that under the

circumstances the defendant’s failure to subpoena the

witness indicated a lack of due diligence,’ and its

holding that defendant did not demonstrate that

material, admissible testimony would be produced if

the continuance were granted, is supportable under

the record in this case. Since we find that the trial

judge’s decision did not constitute an abuse of the dis-

cretion accorded him under the article, we find defen-

dant’s third assignment of error to be without merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

Defendant contends that the trial judge erred in

refusing to grant a mistrial when the prosecutor re-

6 This Court in the past has demonstrated a noticeable reluctance

to reverse in Article 709 cases absent a clear showing of abuse on

the part of the trial judge. See, e.g., State v. Chavers, 294S0.2d 489

(La. 1974); State v. Valentine, 262 La. 571, 263 So.2d 893 (1972).

7 For cases holding that the due diligence” uirement is or-

dinarily not satisfied when defense counsel talls to have the poten-

tial witness subpoenaed, see, State v. Terry. S0. 2d — (La.

1978), No. 61,288; State v. Bennett, 341 So. 2d 847 (La. 1977); State v.

rar 324 So.2d 384 (La. 1975); State v. Elias, 230 La. 498, 89 So. 2d 51

ferred in his opening statement to defendant’s deposi-

tion and worksheet which were taken in a civil

proceeding involving the same parties. He further

asserts that the court’s admonition to the jury was in-

sufficient to mitigate the damage ensuing from the

prosecutor’s remarks. The prosecuting attorney

stated:

“The money was not paid and a suit was filed

on behalf of Pamela Gray against W. D. Atkins

for payment of the money that she claimed she

was entitled to. During the proceedings ofthis

suit, Mr. Wright took Mr. Atkins deposition in

a civil matter, took his testimony, and as a

result of that, a certain worksheet was produc-

ed by Mr. Atkins explaining how....”

At this point, defense counsel objected and moved fora

mistrial on the basis of Louisiana Code of Criminal

Procedure Article 767, which provides that the

prosecution “shall not, in the opening statement,

advert in any way to a confession orinculpatory state-

ment made by the defendant.” The court denied the mo-

tion, but did admonish the jury that the statements

made by either side in this matter on opening state-

ment. .. as any statements of facts, are not evidence

and should not be considered by you as such.“ Defen-

dant asserts that the court’s refusal to grant the mo-

tion for a mistrial constitutes reversible error. The

State, however, contends that the deposition and

worksheet were exculpatory rather than inculpatory

in nature and that, in any event, the defendant suf-

fered no prejudice since the documents were subse-

quently introduced into evidence. Since we agree with

10a

the latter assertion, we find it unnecessary to reach the

issue of whether the documents constituted in-

culpatory statements within the contemplation of Ar-

ticle 767.

In State v. Snedecor, 294 So.2d 207, 209 (La. 1974), this

Court considered a defendant’s contention that the

prosecutor, in his opening statement, had violated the

mandate of Article 767. Therein this Court stated:

“Defendant contends that the prosecutor's

reference in his opening statement to a ‘police

informer’, ‘bugged automobile’, ‘mike’, and

‘tape recorder’ made the jury aware that the

State had an inculpatory statement of the

defendant. Thus the denial of defendant’s mo-

tion for a mistrial under Article 767 of the Code

of Criminal Procedure was erroneous.

“The article states: ‘The state shall not, in

the opening statement, advert in any way toa

confession or inculpatory statement made by

the defendant.’ The reason for this prohibition

is that, should the confession or statement not

be admissible at trial, the jury’s knowledge of

its existence is prejudicial to defendant’s

rights. However, where the statement is sub-

sequently introduced at trial, there can be no

prejudice to the defendant flowing from the

reference in the opening statement.”

See also, State v. Rodry, 270 So.2d 508 (La. 1972).

The situation presented in the instant review is

similar to that found in the Snedecor case. Since the

11

civil deposition and worksheet“ of the defendant

were introduced into evidence at trial, he could not

have been prejudiced by the references to them in the

prosecutor’s opening statement. Accordingly, we find

that defendant’s fourth and fifth assignments of error

lack merit.

ASSIGNMENT OF ERROR NO. 6

In this assignment of error defendant contends that

the trial court erred in allowing Mrs. Gray to testify as

to her state of mind at the time defendant originally re-

ceived the settlement funds and whether she was

allowed to read the settlement contract because defen-

dant was accused of a theft without the consent of the

victim and not a taking by means of fraud. The trial

court did not err in allowing Mrs. Gray to testify.

Defendant’s conduct toward his client at this time was

relevant to show the nature of his intent at the time of

later disbursements of the settlement funds from the

bank account and also tended to prove a lack of con-

sent by Mrs. Gray to later takings.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 10

Defendant contends that the trial court’s refusal to

give requested special jury charges constitutes rever-

sible error. Louisiana Code of Criminal Procedure Ar-

ticle 807 gives to both the state and the defense the

right to submit to the court special written charges for

the jury. The article further requires the court to

charge the jury pursuant to the written request if “it

12a

does not require qualification, limitation, or explana-

tion, and if it is wholly correct and pertinent.”

However, the charge need not be given if it is included

in the court’s general charge to the jury, or if it forms a

part of another special charge which is given by the

court.

Our examination of the record indicates that the

trial court did not err in refusing defendant's special

charges numbers one and eight. Both of these charges

Were attempts to set forth the necessary elements

which the state must prove in order to establish the

commission of the crime of theft. a matter fully

covered by the trial judge in his general charge.

Therefore, the charges were properly refused. State v.

Luckett, 327 So. 2d 355 (La. 1976). Accordingly, we find

defendant’s tenth assignment of error to be meritless.

ASSIGNMENT OF ERROR NO. 11

In this assignment, defendant complains of the ac-

tion of the trial court in allowing the prosecuting at-

torney, during closing argument, to distribute to the

jury copies of documents which had already been in-

troduced into evidence and examined by the jury at the

time of their admission. Louisiana Code of Criminal

Procedure Article 744 provides that closing argument

“shall be confined to evidence admitted, to the lack of

evidence, to conclusions of fact that the State or defen-

dant may draw therefrom, and to the law applicable to

the case.”

In State v. Rowell, 306 So.2d 668 (La. 1975), this Court

found no error in a procedure whereby the jury was

13a

allowed to examine, during closing argument,

evidence. which had previously been admitted but

which had not been examined by the jury at that time.

The defendant argues that Rowell is distinguishable

because, in the instant case, the jury had already view-

ed the evidence, and its subsequent distribution to the

jury resulted in its being accorded undue weight. Our

reading of Rowell, however, indicates that the court

approved the procedure not because the jury had not

previously viewed the documents, but because they

had been introduced into evidence prior to the com-

mencement of the closing argument. Therefore, we

find that the trial judge did not err in permitting the

evidence to be displayed to the jury during closing

argument.

Further, we find no merit to the defendant's argu-

ment that he was prejudiced by the distribution of mul-

tiple copies, rather than a single copy, of the

documents in question. Defendant has failed to

demonstrate any prejudice resulting from a procedure

which was apparently intended only to facilitate the

jurors’ viewing of the exhibits. Defendant's tenth

assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 12 AND 13

Defendant contends that the trial court erred in over-

ruling his motion for a new trial, which was based

upon the contention that the state presented no

evidence of certain essential elements of the crime of

theft. Our review of the record indicates that the State

presented at least some evidence of each of the essen-

tial elements of the offense; therefore, we find that the

14a

trial judge did not err in his ruling. See, State v. Finley,

341 So.2d 381 (La. 1977). Accordingly, we find defen-

dant’s final assignments of error to be meritless.

For the reasons herein expressed, defendant’s con-

viction and sentence are affirmed.

[SEAL]

SUPREME COURT OF LOUISIANA

A TRUE COPY

OCT. 23, 1978

/s/ ANDREW J. FALCON

DEPUTY CLERK

APPENDIX B

SUPREME COURT

STATE OF LOUISIANA

NEW ORLEANS

October 23, 1978

UNITED STATES OF AMERICA

STATE OF LOUISIANA

SUPREME COURT OF THE

STATE OF LOUISIANA

New Orleans, 70112

I, Andrew J. Falcon, Deputy Clerk, Supreme Court of

the State of Louisiana, do hereby certify that the Court

15a

took the following action on July 26, 1978, in the matter

entitled State of Louisiana vs W. D. Atkins, Jr., No. 61,-

156:

“Rehearing refused”

IN WITNESS WHEREOF, I hereunto sign my name

and affix the seal of the Court aforesaid, at the City of

New Orleans, this the 23rd day of October A.D., 1978.

/s/ ANDREW J. FALCON

Deputy Clerk

Supreme Court of the

State of Louisiana

[SEAL]

APPENDIX C

SUPREME COURT OF LOUISIANA

NUMBER 61,156

STATE OF LOUISIANA

Plaintiff-Appellee

versus

W. D. ATKINS, JR.

Defendant-Appellant

16a

Appeal from the Fifteenth Judicial District Court

Lafayette Parish, Louisiana

Honorable Hugh E. Brunson, Judge

PETITION FOR STAY OF EXECUTION ON BEHALF

OF DEFENDANT-APPELLANT, W. D. ATKINS, JR.

TO THE HONORABLE THE CHIEF JUSTICE AND

THE ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE STATE OF LOUISIANA:

The petition of W. D. Atkins, defendant in the above

numbered and entitled cause, with respect represents:

I.

That the decree of this Honorable Court affirming

the verdict and sentence of the District Court for the

Parish of Lafayette, is final, this Court having refused

an application for a rehearing on 26th day of July,

1978.

II.

Petitioner avers that the opinion and decree of this

Honorable Court deprives him of his rights

guaranteed him under Article 1, Section 2 of the Con-

stitution of the State of Louisiana and by the Sixth and

Fourteenth Amendments of the Federal Constitution

and that he was tried and convicted, over his protest,

without due process of law, to-wit:

17a

That the State’s response to the defendant’s Bill of

Particulars was improper in that the answers were

constitutionally unacceptable under State and

Federal standards because of the inadequacy in

notifying defendant of the nature of the charges

against him.

III.

Amended answers to the Bill of Particulars were

given defendant a few minutes before the commence-

ment of the trial failing to comply with “due process“

of law under the 14th Amendment of the United States

Constitution and the applicable State Constitutional

provisions.

IV.

That the Trial Judge erred in failing to give re-

quested special charge number 1 — that is that there

must be a concurrence at one time of the essential

elements of the offense of theft. In this connection, the

Louisiana Criminal Code Article 8 defining criminal

conducts states:

“Criminal conduct consists of:

1) An act or failure to act that produces

criminal consequences, and which is com-

bined with criminal intent; or

2) A mere act or failure to act that produces

criminal consequences, where there is no

requirement of criminal intent; or

3) Criminal negligence that produces

criminal consequences.”

18a

The charge requested was not fully covered by the

Trial Judge’s general charge. They were correct. They

did not require further explanation.

The failure to give a requested special charge which

is wholly correct and pertinent, and which does not re-

quire qualification, limitation, or explanation is a

violation of due process” of law under the Four-

teenth Amendment of the United States Constitution.

It is also prejudicial to the substantial rights of the ac-

cused and constitutes a substantial violation of a con-

stitutional or statutory right. The statutory right is

founded in Louisiana Code of Criminal Procedure Ar-

ticle 807.

V.

That the defendant raises the question of there being

a total lack of evidence of the elements of the offense

for which he is accused. In this connection, and it must

be pointed out, that if the State’s answers to the Bill of

Particulars were only sufficient in their amended an-

swers, that the amended answers charged an offense

in Baton Rouge and therefore there could be no proof of

an offense in Lafayette Parish. Thus, as a matter of law

by the State’s amended answers to the particulars, the

Motion for New Trial should have been granted.

Further, on the facts in this case, there is absolutely

no showing that the defendant whenever requested

personally by Pamela B. Gray failed to provide her

with any funds due her. The testimony shows that she

talked to him only one time and that whatever funds

she requested were furnished. All of the other

19a

testimony relates to her conversations with some

third person for whose conduct the defendant is not

answerable under the laws of principles. Further, the

worksheet filed in evidence and the testimony shows

that substantial funds have been paid to Pamela Gray

or paid in her account. It also showed a reserve of sub-

stantial funds in the approximate amount of the alleg-

ed theft for the contigency of litigation of a claim of

another attorney who asserted attorney's fees arising

out of the settlement proceeds. Thus, the defendant,

ATKINS, never claimed, according to the worksheet,

title or ownership of the funds in question.

Finally, in view of the facts in this case, there is

TOTALLY NO PROOF OF SPECIFIC INTENT tocom-

mit theft. At most, it shows a dispute between an at-

torney and his client concerning the disbursement of

the proceeds of a settlement. Perhaps bad judgment

may have been used. This, however, can not be

translated into affirmative evidence of specific intent

to commit theft.

VI.

That the record in this case shows that the defendant

was tried by a six-man jury and that its verdict was

five for “guilty” and one for “not guilty’. Such atrial

violates the defendant's rights under the Sixth and

Fourteenth Amendments of the United States Con-

stitution. Specifically, a trial jury of only five persons

has been held to be in violation of the Sixth and Four-

teenth Amendments of the United States Constitution

by the United States Supreme Court in Ballew v.

Georgia, ___ U.S. —__, 98 S.Ct. 1029 (1978). In the

20a

Ballew case, an unanimous five-man jury was in-

volved. In the present case, with a 6-man jury involved

with 5 for “guilty” and 1 for “not guilty”, it would seem

that 5 minus 1 equals 4 and that the present trial is at

least one juror less constitutional than the jury in the

Ballew case.

In effect, the Louisiana 6-man jury is nothing in the

world except the unconstitutional unanimous 5-man

jury under the Ballew case and one additional vote

which does not count.

VII.

Petitioner avers that he timely raised the said

questions in the lower court at the time of his arraign-

ment and after his conviction in a motion for a new

trial and in this Court by his Assignment of Errors.

VIII.

Petitioner further avers that he is desirous of apply-

ing to the Supreme Court of the United States fora writ

of certiorari and review, or appeal, to review the deci-

sion of this Honorable Court upon the issues

hereinabove raised and as shown by the record in this

case; and that petitioner desires that he be given a stay

or delay in which to apply to said Court; and that the

decree or mandate of this Honorable Court be stayed

so that petitioner will have an opportunity to so pre-

sent his application to the Supreme Court of the Unit-

ed States for relief.

21

WHEREFORE, petitioner prays that after due con-

sideration that this Honorable Court grant him a

reasonable stay of execution and that he be permitteda

delay of ninety (90) days in which to prepare and file in

the Supreme Court of the United States his application

for a writ of certiorari or appeal to review the decision

of this Honorable Court and that the mandate and

decree of this Honorable Court be withheld according-

ly.

Petitioner further prays for all general and

equitable relief.

Respectfully Submitted,

TRICHE, STERNFELS

& NAIL

ATTORNEYS AT LAW

P. O. DRAWER 339

NAPOLEONVILLE,

LOUISIANA 70390

/s/ RISLEY C. TRICHE

Risley C. Triche

Attorney for Defendant

Counsel for petitioner, W. D. Atkins, Jr., hereby cer-

tifies that the foregoing petition and application is

made in good faith and counsel further certifies that he

verily believes that petitioner is entitled in law to the

relief sought.

/s/ RISLEY C. TRICHE

RISLEY C. TRICHE

22a

ORDER

Let petitioner be granted a stay of execution of the

decree of this Honorable Court for a period of ninety

(90) days from July 26, 1978.

New Orleans, Louisiana, this 28th day of July, 1978.

/s/ JOE W. SANDERS

CHIEF JUSTICE

CERTIFICATE

I certify that a copy of the above and foregoing Peti-

tion for Stay of Execution has been mailed to J. Nathan

Stansbury, District Attorney in and for the 15th

Judicial District Court, Lafayette Parish, Louisiana,

this 28th day of July, 1978.

/s/ RISLEY C. TRICHE

RISLEY C. TRICHE

23a

OFFICE OF THE CLERK

SUPREME COURT OF LOUISIANA

NEW ORLEANS, 70112

July 28, 1978

Hon. O. C. Guilliot

Clerk of Court

Parish of Lafayette

P. O. Box 2009

Lafayette, La. 70501

Re: 61,156 - State of La. vs. W. D. Atkins, Jr.

Dear Sir:

Enclosed herewith isa petition for Stay of Execution

on behalf of Defendant-Appellant. W. D. Atkins, Jr.,

which was signed by Chief Justice Joe W. Sanders on

this date.

Please be guided accordingly.

Yours truly,

Harold A. Moise, Jr.

Clerk

/s/ ANDREW J. FALCON

Deputy Clerk

AJF/kf

ccs: Hon. Hugh E. Brunson

Hon. J. Nathan Stansbury

Risley C. Triche, Esq.

Barbara Rutledge