# Petition — Atkins v. Louisiana

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1969%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 441 U.S. 927

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1969%3A1. Public record. Not legal advice.