Petition for Writ of Certiorari — Cathey v. Louisiana
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Supreme Court, U.S.
96-1540 | (i *"
. MAR 28 1987
Sn aceme ~~] JOSEPH F. SPANIOL, UR,
In the CLERK
Supreme Court of the United States
OCTOBER TERM, 1986
JOSEPH CATHEY
Petitioner.
VERSUS
STATE OF LOUISIANA
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEALS FOR THE STATE OF
LOUISIANA, FIFTH CIRCUIT
JACOB J. AMATO, JR.
DAVID W. BIRDSONG
AMATO & CREELY
P. O. Box 441
Gretna, Louisiana 70054
Telephone: (504) 367-8181
A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555
i
QUESTIONS PRESENTED
WHETHER THE HEARSAY STATEMENTS OF A
MINOR WHO FAILED TO _ TESTIFY
PRESENTED PROBABLE CAUSE TO ENTER
AND SEIZE DEFENDANT’S APARTMENT A
WARRANT OR THE DEFENDANT'S CONSENT.
WHETHER THE DEFENDANT WAS COERCED
INTO GIVING HIS CONSENT TO SEARCH HIS
APARTMENT SUCH THAT THE CONSENT WAS
NOT FREELY AND VOLUNTARILY GIVEN.
WHETHER THE PREJUDICIAL COMMENTS
HADE BY THE TRIAL JUDGE WERE SUFFI-
CIENT TO DECLARE A MISTRIAL UNDER THE
FOURTEENTH -AMENDMENT TO THE USS.
CONSTITUTION.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW.............00000. i
TABLE OF CONTENTG..........ciccccccsccssssssssssscsssscsscscscescsees ii
CITATIONS AND AUTHORITIES............ccccccseseceseceeees iii
RE SECINDUUEE MEME OY 5 sceisivcsssastsdssinetidsaiacecsrioeclinieasosbinemecenies 1
PEE IOT s coscnssjccnsukshnnsinsastacssigbiaeccdaiealcasetecnstancounsets 1
CONSTITUTION PROVISIONS INVOLVED................ 2
STATEMENT OF THE CASE.....0......cccccccsscssessssssceeseesees 2
HOW THE FEDERAL QUESTIONS WERE
RAISED AND PASSED UPON. .......cc.ccccccssssssescesseeceees 3
REASONS FOR GRANTING PETITION. .....0........cccc000- 5
SE IOAIIIIIIN ciisdccissinatssinsdidGersdbbubbocdetaahd abe es. 19
a st ES MR TO bn mL E ee 20
APPENDIX A
Decision of the Louisiana Fifth Circuit Court
PD eiisicstensasscnstcseitstiedacaarae eciuashs tangicresoonaseyel A-1l
APPENDIX B 2
Defense Motions and Court Rulings..............0..:.000+. A-32
APPENDIX C
Denial of Supervisory Writs by the Louisiana
SRBONND COUF Ej ai csecdinccmnennesFiaSohaiaccachsscppitoanedancene A-60
APPENDIX D
Constitutional Provisiona,................0cc0<.c.cedsecoooscoeesoss A-61
CITATIONS AND AUTHORITIES
PAGES
UNITED STATES CONSTITUTION,
PRT, 9 Y ccccnccccccncsseccscscccssssseosnsaces 2,5,6,10,13,15
TE 2.17
BERIT, BEIT vacasccnccnicccnseccooscestecccssenccessensens 2.15.17
LOUISIANA CODE OF CRIMINAL PROCEDURE
a 0 eashnsabbiapntenhanipabsonsen 16
Tifa lecshinecsasnabensnsenzasnacneseseocosonsenncsin 17
a a a slenashsbemmennenenennensonene 17
CASES
FEDERAL
Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29
iS caphenasvnapounnensunegacened 6
Brown uv. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45
L.Ed,2d a cessnanices 12,15
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317,
76 L.Ed.2d 527, rehearing denied 463 U.S. 1237,
i sai ccs csnesnksinsosonscscsens 9
Jones v. U.S, 362 U.S. 257, 80 S.Ct. 725
ati ideale iniehnicRisethinniahiabiendnceneaaececcces 9
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
RES a SO 12
Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371,
i i sara tnninieseganonnmneconoeees 7
Segura v. U.S., 468 U.S. 996, 104 S.Ct. 3380, 82
SERRE 7
United States v. Crews, 445 U.S. 463, 100 S.Ct.
Be ie PI OE CRIES. orccecsiccceceseccacsoccatoccesoseseces 10
United States v. United States District Court, 407
U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)............ 7
er
iv
AUTHORITIES (continued)
CASES PAGES
Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26
RGR INEE AUN Ci PR icnatecncitaciclosacessshsscciaschccejpsincssnssbensicenesse 7
Wong Sun v. United States, 371 U.S. 471, 83 S.Ct.
GT Ae Tae Oe ets. sennsstnsnscnsncnncecsatscanpeecccsencees 10
U.S. v. Bates, 468 F.2d 1252 (5th Clr. 1972).................. 18
U.S. v. D’Allerman, 712 F.2d 100 (5th Cir. 1983),
cert.
denied 464 U.S. 899, 104 S.Ct. 254, 78 L.Ed.2d
240
EEN ee Shs Re” SAT I CONE a. at SETA 12
State v. Bearden, 449 So.2d 1169 (La. App. 5th Cir.
ei ietiiiiSsnsnétcdintsicainadpcapsssesipesinnasniisestibieelal Ss saiileniaheibaiiedaiiandl 8
State v. Brevelle, 270 So.2d 852 (La. 1979)..................... 17
State v. Lonigan, 263 LA. 926, 269 So.2d 816
Se enckinisantticdbcmasitatnniniiilideidlna dias be tusdiltabetntentneaanitastaanen 17
State v. Ragsdale, 381 So.2d 492 (La. 1980)................... 14
State v. Summers, 440 So.2d 911 (La. App. 2nd Cir.
Siete ccnieduilbeinnssnso-detiniinesistbalhtesbmamiiiidaaittndiads bites tibaasiasdseaiiaeds 13
1
Joseph Cathey, petitioner herein, through undersign-
ed counsel, prays that a writ of certiorari be issued to the
Fifth Circuit Court of Appeals of the State of Louisiana to
review the judgment and opinion rendered in case no.:
86-KA-111, on August 25, 1986.
OPINIONS BELOW
There was no formal opinion of the Twenty-Fourth
Judicial District Court of Louisiana, from which this pro-
ceeding emanates. Excerpts of the transcript in that Court,
including the Judge’s statements denying defendant’s
various motions and minute entries representing the same
are reproduced in Appendix B of this petition.
The opinion of the Fifth Circuit Court of Appeals for
the State of Louisiana has not been reported at this time
but is reproduced in Appendix A to this petition. Ap-
plication by the defendant for supervisory writs to the
Louisiana Supreme Court were denied without comment on
January 23, 1987, the minute entry representing the same
is reproduced as Appendix C to this petition.
JURISDICTION
The opinion and order of the Fifth Circuit Court of
Appeals of the State of Louisiana were entered on August
25, 1986. On January 23, 1987, the Louisiana Supreme
Court denied petitioner’s application for supervisory writs
of certiorari, prohibition and mandamus. The jurisdiction
of this Court is invoked under 28 U.S.C. 1257(c), because a
title, right, privilege or immunity was claimed under the
Constitution of the United States, which claim was denied
by the Fifth Circuit Court of Appeals of Louisiana.
2
CONSTITUTIONAL PROVISIONS INVOLVED
This case involves sections of the Fourth, Fifth,
Sixth and Fourteenth Amendments to the United States
Constitution. These Amendments are reprinted in perti-
nent part in Appendix D attached hereto.
STATEMENT OF THE CASE
On May 3, 1983, the defendant, Joseph Cathey, a
licensed horse trainer, was arrested at his mobile home
located on the premises of Jefferson Downs Race Track in
the Parish of Jefferson, State of Louisiana. Mr. Cathey re-
quested an attorney several times both at his mobile home
and later when he was taken to his apartment. When Tonia
Nolan, a co-defendant in the District Court who lived with
Mr. Cathey, and who was an employee of Jefferson Downs
Race Track, heard that Mr. Cathey was under arrest, she
attempted to go to the apartment they shared off of the
Jefferson Downs premises to confirm whether their apart-
ment was indeed “surrounded”, as she had been told.
Without any knowledge of Ms. Nolan’s actions, Sargeant
DeSalvo of the Jefferson Parish Sheriff's Office sent two (2)
officers to the apartment shared by Mr. Cathey and Ms.
Nolan to “‘secure”’ it. The officers of the Jefferson Parish
Sheriff's Office entered the premises and walked through
the apartment searching it for any persons that may be
hiding there. Upon her arrival at the apartment, Ms. Nolan
found the policemen already inside and thereafter she was
not allowed to leave. When Ms. Nolan and the officers were
inside the apartment they asked her permission to search
but she refused. Mr. Cathey was brought to the apartment
in the company of three (3) officers of the Jefferson Parish
Sheriff's Office who, along with the other two (2) officers
3
already present in the apartment and the officers assigned
to the case and representatives of the Louisiana State
Police numbered approximately six (6) or seven (7) law en-
forcement officials in Mr. Cathey’s apartment at that time.
Mr. Cathey was told that Ms. Nolan would not be arrested
if he consented to a search of the apartment and after being
in ppolice custody for some time, he agreed. The search of
the apartment turned up a footlocker containing medicines
used in conjuinction with the treating of horses and the two
(2) controlled dangerous substances Mr. Cathey was charg-
ed with possession of herein.
HOW THE FEDERAL QUESTIONS WERE RAISED
AND PASSED UPON
On June 10, 1983, a Bill of Information was filed
against Tonia Nolan and Joseph Cathey charging them
with two (2) counts of violating Louisiana Revised Statut-
tes 40:967, the first count being possession of hydromor-
phine (dilaudid), and the second count being possession of
methidine (demoral). The first federal questions were
presented when the defendants moved to suppress the ad-
mission of any evidence concerning the drugs themselves
due to an illegal search and seizure. This hearing was held
on May 14 and 15, 1984 and the Motion to Suppress was
denied. The defendant then sought supervisory writs on
the denial of the motion to suppress. The writs were refus-
ed by both the Fifth Circuit Court of Appeals and the
Supreme Court of Louisiana, both stating that adequate
review would be had on appeal.
On May 1, 1985, the defendant's trial began with the
defendant's attorney raising federal questions and again
moving to reconsider the motion to suppress in light of
4
petitioner's consent to search not being given willfully or
voluntarily, or coming as a result of continued interroga-
tion after petitioner had asked for an attorney and such re-
quest had been denied. The defendant’s trial took place on
May 1, 2 and 3, 1985 during which defendant’s counsel
lodged objections to the District Judge’s conduct concern-
ing comments he made in regard to testimony that was
given. These objections were overruled by the trial judge.
On May 3, 1985, the jury returned a verdict of guilty as
charged on both counts against Mr. Cathey. The jury failed
to reach a decision concerning defendant Tonia Nolan and
the trial judge declared a mistrial as per the charges
brought against her. Defendant, Joseph Cathey, subse-
quently filed a motion for a post verdict judgment of ac-
quittal which was denied. On December 14, 1985, the defen-
dant was sentenced to three (3) years in the custody of the
Louisiana Department of Corrections at hard labor plus a
fine of $5,000.00 and costs.
The defendant filed a motion for appeal and the mat-
ter was reviewed by the Fifth Circuit Court of Appeal for
the State of Louisiana. A decision therein was handed
down on August 25, 1986, affirming the decision of the
lower court. A motion for rehearing was filed which was
then denied on September 17, 1986. On October 17, 1986,
an application for supervisory writs of certiorari, prohibi-
tion and mandamus was filed with the Supreme Court for
the State of Louisiana, On January 23, 1987, the Supreme
Court of the State of Louisiana denied defendant's
application.
The defendant's constitutional rights were therefore
argued before the Twenty-Fourth Judicial District Court
and the Fifth Circuit Court of Appeals for the State of
; 5
Louisiana, with writs being sought from the Louisiana
Supreme Court at the earliest and to the most comprehen-
sive extent in the proceedings available to petitioner.
REASONS FOR GRANTING PETITION
I.
WHETHER THE HEARSAY STATEMENTS
OF A MINOR WHO FAILED TO TESTIFY
PRESENTED PROBABLE CAUSE TO
ENTER AND SEIZE DEFENDANT'S APART-
MENT WITHOUT A WARRANT OR THE
DEFENDANT'S CONSENT.
On May 3, 1984, two (2) agents of the Jefferson
Parish Sheriff's Office entered the apartment residence of
Joseph Bradley Cathey, without a warrant and without
Mr. Cathey’s consent. The officers entered the apartment
with the intent to “secure it”, that is, to look where anyone
may be hiding in the apartment. There is no dispute that
the officers’ actions were taken without a warrant and
without Mr. Cathey’s consent. Such action is in direct con-
travention of Mr. Cathey’s federal and state constitutional
rights. The protection of the right to privacy in a persons
home is one of the bullworks of the U.S. Constitution. The
Fourth Amendment to the United States Constitution
clearly states:
“The right of the people to be secure in their per-
sons, houses, papers and effects, against
unreasonable searches and seizures, shall not be
violated, and no warrants shall issue but upon
probable cause supported by oath or affirmation
and particularly describing the place to be search-
ed, and the persons or things to be seized.”’ (em-
phasis added)
6
Sargeant DeSalvo of the Jefferson Parish SHeriff’s
Office was conducting an investigation of the arrest of Mr.
Cathey and desired to talk to Ms. Tonia Nolan with whom
Mr. Cathey shared an apartment. After attempting to con-
tact Ms. Nolan in her office with the racing commission at
Jefferson Downs Race Track, he sent two (2) agents,
LaChute and Pinnero, to the Appellant’s apartment. The
agents were sent to ‘‘secure” the apartment which, in the
agents’ minds, included getting inside the apartment.
Agent LaChute testified that he thought the Sheriff’s of-
fice was in the process of getting a warrant. At no time,
however, was a warrant requested or obtained.
There is also no question that at the time Agents
LaChute and Pinnero entered the apartment they had no
information of any consent on the behalf of Mr. Cathey or
Ms. Nolan which would allow them to enter the apartment.
Once inside the apartment the agents went from room to
room, opening closets, to make sure that no one was in the
apartment. This action directly impinged on the defen-
dant’s right to be secure in his own home. In discussing the
application of the Fourth Amendment of the United States
Constitution to a home, this Honorable Court has stated:
‘‘Almost a century ago the Court stated in re-
sounding terms that the principle reflected in the
Amendment ‘reached farther than the concrete
form’ of the specific cases that gave it birth and
‘applied to all invasions on the part of the govern-
ment and its employees of this sanctity of a man’s
home and the privacies of life.’”’ Boyd v. United
States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29
L.Ed.2d 746....
As the Court reiterated just a few years ago, the
‘physicial entry of the home is the chief evil
+ ary
7
against which the wording of the Fourth Amend-
ment is directed.’’ United States v. United States
District Court, 407 U.S. 297, 313, 92 S.Ct. 2125,
2134, 32 L.ED.2d 752.” Payton vs. New York,
445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639
(1980), at 100 S.Ct. pages 1379 and 1380.
The question presented herein is one this Court has
examined in Segura v. United States, 468 U.S. 796, 104
S.Ct. 3380, 82 L.Ed.2d 599 (1984), concerning the “‘seizure”’
of a premises. While a persons privacy rights are different
in regards to a seizure as opposed to a full blown search,
some level of probable cause needs to be present prior to a
warrantless seizure taking place. In Segura, supra, this
Honorable Court stated:
‘“‘We hold, therefore, that securing a dwelling, on
the basis of probable cause, to prevent the
destruction or removal of evidence while a search
warrant is being sought is not itself an
unreasonable seizure of either the dwelling or its
contents. We reaffirm at the same time, however,
that, absent exigent circumstances, a warrantless
search-such as that invalidated in Vale v. Loui-
siana, supra, [399 U.S. 30, 90 S.Ct. 1969, 26
L.Ed.2d 409 (1970)] 399 U.S., at 33-34, 90 S.Ct., at
1971-1972-is illegal.’’ at page 104 S.Ct. 3389
The probable cause referred to by this Court in
Segura, is not present in the case at bar. Absent any such
probable cause the seizure of the defendant’s apartment by
the Jefferson Parish Sheriff’s Office cannot be justified.
The only attempt at justification the Louisiana ap-
pellate court could find for this warrantless intrusion into
the defendant’s apartment was that it was necessary to
prevent the possible destruction of evidence. In that regard
8
the Louisiana appellate court relied on the case of State v.
Bearden, 449 So.2d 1109 (La. App. 5th Cir. 1984) writ
denied, 452 So.2d 179 (La. 1984). Bearden, however, is
readily distinguishable from the case at bar. In Bearden,
the officers knew that people were inside the house and
they had eyewitnesses testimony of actual samples of the
drugs that were located in the house. No such probable
cause was present prior to the Jefferson Parish Sheriff’s
Office entering Mr. Cathey’s apartment and seizing it.
The Louisiana Appellate Court cited four (4) factors
it relied upon to establish probable cause for the entry into
the apartment. The first two of these factors are the same,
the second factor merely repeating the first from another
source. They are: (1) Agent Kratzburg testified that Jeffer-
son officials received a complaint in reference to possible
narcotics violations and sex crimes involving the defen-
dant; (2) Colonel Miller testified that an investigation was
proceeding with reference to a juvenile individual that was
supposedly getting some drugs from an individual out at
Jefferson Downs. Nothing in either of these two
statements establishes probable cause to believe that any
drugs would be found in the defendant’s apartment. There
is no evidence of anyone saying they saw drugs in Mr.
Cathey’s apartment. No evidence whatsoever is presented
to lend any veracity to the statements by the police officers
referred to by the appellate court. This information is not
sufficient to support a warrantless seizure of the defen-
dant’s home. :
The third factor the appellate court relied upon was:
(3) that the defendant had given a juvenile a marijuana
cigarette prior to his arrest. The defendant was indeed
charged with the offense of distributing a controlled
Ol nad) cea
9
substance to a minor, and tried on that charge, but was not
convicted. This alleged act occurred at the defendant's
mobile home, some distance from his apartment. After the
defendant’s arrest at his mobile home, it was completely
searched by the Sheriff’s Office and they failed to come up
with any other contraband of any nature in Mr. Cathey’s
possession. Nothing in this allegation lends any credence to
any belief that contraband would be found in the defen-
dant’s apartment.
Probable cause, as this Court set forth in Jilinois v.
Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)
rehearing denied 463 U.S. 1237, 104 S.Ct. 33 (1983), must
be based on the totality of the circumstances surrounding
the actions of the two (2) agents who entered Mr. Cathey’s
apartment without a warrant and without his consent.
While Iiiinois v. Gates, supra, examined the role of a
magistrate in granting a search warrant, the duty of a
reviewing court in examining probable cause is the same.
“The task of the issuing magistrate is simply to
make a practical, common sense decision
whether, given all the circumstances set forth in
the affidavit before him, including the ‘veracity’
and ‘basis of knowledge’ of persons supplying
hearsay information, there is a fair probability
that contraband or evidence of a crime will be
found in a particular place. The duty of a review-
ing court is simply to insure that the magistrate
had a ‘substantial basis for...concluding’ that pro-
bable cause existed. Jones v. United States, 362
U.S., at 271, 80 S.Ct., at 736.”’ Illionis, supra at
page 103 S.Ct. 2332
Using this test, examining the totality of the cir-
cumstances, no veracity has been shown to support the
statements cited by the appellate court. Had this
10 ‘
information been presented to a magistrate, he could not
have made a “practical, common sense decision”’ that pro-
bable cause for finding any particular drug would be found
in Mr. Cathey’s apartment. The Sheriff’s desire to enter
Mr. Cathey’s apartment to continue their investigation is
insufficient to overcome the protections guaranteed to the
defendant by the Fourth Amendment of the United States
Constitution. The fourth factor relied upon by the apellate
court was: (4) That the defendant's live-in girlfriend did not
appear at the track for questioning when informed that the
defendant had been arrested. While this might provide an
exigent circumstance to take some action, exigent cir-
cumstances on their own, are insufficient to ailow a seizure.
The circumstances must follow the establishment of pro-
bable cause and be based on probable cause as set forth
above, before it can be acted on by the Sheriff’s Office in
contravention of a citizen’s Fourth Amendment rights. Ab-
sent probable cause, there is no evidence of contraband to
be protected and no reason to enter and “‘secure’’ the defen-
dant’s house.
The only recourse available to the defendant is to re-
quest this Honorable Court to invoke the exclusionary rule
and to supress the evidence found in the defendant’s apart-
ment subsequent to this illegal seizure. As set forth in
Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9
L.Ed.2d 441 (1963) and United States v. Crews, 445 U.S.
463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980), at page 100
S.Ct. 1249.
This Court must, therefore, to protect future such
violations of citizens rights, define the actions of the Jeffer-
son Parish Sheriff's Office of the State of Louisiana, of
entering into a suspect’s apartment without warrant or
1]
consent or probable cause acting only on exigent cir-
cumstances, as an unconstitutional act, and reverse the
District Court and Louisiana Appellate Court decisions
and order the suppression of evidence obtained as a result
thereof.
II.
WHETHER THE DEFENDANT WAS COERC-
ED INTO GIVING HIS CONSENT TO
SEARCH HIS APARTMENT SUCH THAT
THE CONSENT WAS NOT FREELY AND
VOLUNTARILY GIVEN.
The second issue on which the defendant requests
this Court to review the actions of the appellate court con-
cerns the coercion used to gain Mr. Cathey’s consent to
more formally search his apartment. The following are the
facts set forth in testimony concerning the request made of
Mr. Cathey by the police officials to search his apartment.
Once Mr. Cathey was brought to his apartment a
number of policemen were aiready there. The number at
times varied but it is known that at least six (6) or seven
(7) policemen were in the apartment at one time or another.
Mr. Cathey was in handcuffs and was surprised to find Ms.
Nolan there in custody when he entered the apartment. Mr.
Cathey testified he was told that if he signed the consent
to search form that Mr. Nolan would not be arrested,
which, as a promise made by the police officers, carries with
it the implied threat that she too was to be placed under ar-
rest. Only when placed in that position did Mr. Cathey
finally agree to sign the consent to search form, with Ms.
Nolan signing after the search had begun or had been com-
pleted. The defendant’s actions cannot be held to be free
12
and voluntary. When questioned, Sargeant DeSalvo could
not justify why he did not have Mt. Cathey sign a consent
to search form at the race track before he was taken to his
apartment. The officer stated he did not have a form with
him at the time but could not identify where he later ob-
tained one.
Jurisprudence clearly dictates that when a war-
rantless search has taken place the State has the burden of
proving that a consent was given to search is excepted
from the requirements of probable cause and a warrant,
such consent requires the relinquishment of constitutional
guarantees. It is encumbant upon the State to demonstrate
that consent was free and voluntary. United States v.
D’Ailerman, 712 F.2d 100 (U.S.C.A. 5th Cir. 1983) cert.
denied, 464 U.S. 899, 104 S.Ct. 254, 78 L.Ed.2d 240 (1983).
The test set forth for examining the validity of a consent
is similar to that set forth by ths Honorable Court, speak-
ing through Justice Blackmun in Brown uv. Illinios, 442
U.S. 590, 95 S.Ct. 45 L.Ed.2d 416 (1975), concerning
whether a confession was given voluntarily: -
“The question whether a confession is the pro-
duct Of a free will under Wong Sun must be
answered on the facts of each case. No single fact
is dispositive. The workings of the human mind
are too complex, and the possibilities of miscon-
duct too diverse, to permit protection of the
Fourth Amendment to turn on such a talismanic
test. The Miranda warnings are an important fac-
tor, to be sure, in determining whether the confes-
sion is obtained by exploitation of an illegal ar-
rest. But they are not the only factor to be con-
sidered. The temporal proximity of the arrest and
confession, the presence of intervening cir-
cumstances,... and, particularly, the purpose and
13
flagrancy of the official misconduct are all rele-
vant.” 95 S.Ct. at 2261-2262 (footnotes and cita-
tions omitted)
This same rule must be applied when determining if
this consent to search was voluntary and of Mr. Cathey’s
free will or coerced and in violation of his Fourth Amend-
ment rights.
_ A Louisiana case similar to the facts presented today
which appllies the same general rule set forth above is
State v. Summers, 440 So.2d 911 (La. App. 2nd Cir. 1983).
In Summers, the Court cited the following factors as
creating the coercive atmosphere in which the defendant's
consent was not freely and voluntarily given. She was at all
times under the direct supervision and control of two(2)
police officers. She had seen her boyfriend arrested and
taken into custody. She admitted she was scared and that
the officers said they could get a warrant in 10-20 minutes
and she would have to allow the search. The Court in Sum-
mers held:
‘Considering the intrusion of the initial illegal en-
try into Ms. Holloway’s home, the short time bet-
ween that entry and her signing of the consent to
search during which she was under police control
at all times, the intervening events and the other
attendant circumstances mentioned above, we
believe the initial illegal entry and search was in-
strumental in provoking Holloway’s consent
which was therefore not an act of her free will.”’
Summer, supra at page 914.
The similarity of these facts and summaries and
those before the bar on Mr. Cathey’s behalf mitigate
14
toward a similar finding, that the consent to search was not
free and voluntary. Mr. Cathey had been arrested away
from his apartment, handcuffed and forcibly brought back
to his apartment. Once there he discovered seven or eight
police officers in the apartment with Ms. Nolan, with whom
he shared the apartment. Ms. Nolan steadfastly refused to
allow a search without first talking to Mr. Cathey. Ms.
Nolen testified she was nervous and scared and Mr. Cathey
testified that the police promised not to arrest Ms. Nolen
. if he consented to the search. These factors should be suffi-
cient to show that the search was unconstitutional and that
it resulted only from the coercion of Mr. Cathey and that
the evidence obtained thereby must be suppressed.
The Fifth Circuit Court of Appeals for the State of
Louisiana attempted to distinguish this case from State v.
Ragsdale, 381 So.2d 492 (La. 1980), by inferring that
Ragsdale only applies to an illegal entry but that the en-
trance by agents LaChute and Pinnero into the defendant's
home was justified. The entry of the officers however, has
no bearing on the validity of the consent by Mr. Cathey to
search his apartment. He only knew that the officers had
entered his apartment without his consent and their
presence therein added to the ‘‘subtle coercion” applied
against the defendant to get his consent to search. It is
suggested that the defendant had nothing to gain by
cooperating with the police.
By the police officers own testimony it was less than
10 minutes from the itme of their arresting Mr. Cathey and
searching the mobile home, and their asking him for his
consent to search the apartment. The shortness of this
period of time, between his arrest and the granting of
15
consent, is one of the factors cited in Brown v. Illionis,
supra. Mr Cathey was placed under arrest at his mobile
home and taken to his apartment in handcuffs. The
presence of all the different officers, their conduct and
holding Ms. Nolen under arrest at Mr. Cathey’ apartment
while he was brought there, and the short period of time he
was given from his arrest until the asking for the consent
must tilt heavily away from finding any free and voluntary
consent being given and this Court must protect Mr.
Cathey’s Fourth Amendment rights against an
unreasonable search of his residence.
For the same reasons set forth above defendant also
objected at trial to the admission of certain oral statements
made by the defendant and testified to by Agent Kratz-
burg. Any such statements were made after the consent to
search was coerced and as inculpable statements can only
be admitted if it can be shown that they were freely and
voluntarily made, as per Brown uv. Illinois, supra. The
statements relating to the whereabouts of the footlocker
and the knowledge Mr. Cathey had concerning any drugs
located in the footlocker, when introduced at trial of this
matter were tantamount to a confession. As such, given all
of the factors stated above, it was not given freely and
voluntarily and those statements should also be inadmissi-
ble and suppressed.
Il.
WHETHER THE PREJUDICIAL COM-
MENTS MADE BY THE TRIAL JUDGE
WERE SUFFICIENT TO DECLARE A
MISTRIAL UNDER THE FOURTEENTH
AMENDMENT TO THE U.S. CONSTI-
TUTION.
16
The transcript of Mr. Cathey’s trial, dated May 2,
1985, page 49, reveals a question asked by the Assistant
District Attorney to Agent Kratzburg as to if Mr. Cathey
or Ms. Nolan provided a prescription for either of the drugs
found at that residence. Agent Kratzburg responded no
and began to explain his answer relating a statement made
by the defendant. Defendant’s counsel had not received
notice of the intent to use that statement and objected to
it being admitted into evidence. Without the explination
there is no foundation for the answer and so the whole
answer must be stricken. The proper question would have
been ‘Did you ask Mr. Cathey or Ms. Nolen if they had a
prescription for these drugs.’’ Rather than strike the entire
answer, however, Judge LeBrun of the Twenty-Fourth
Judicial District Court, of the State of Louisiana, at pages
50 and 51 of the transcript of May 2, 1985, admonished the
jury to ignore the statement attributed to the defendant,
but added:
‘But you do not necessarily have to disregard the
fact that he had no prescription according to the
testimony of the-no prescription was given to him
or shown to him. Okay.” page 51, lines 24-29,
page 52, lines 1-2.
There was no foundation for the comments made by
Judge LeBrun. The police officer did not testify as to
whether he had inquired about a prescription. Judge
LeBrun was making an assumption that was not properly
before the Court when he made his comment. This is in
direct violation of Louisiana Code of Criminal Procedure
Article 727, which states:
“The Judge in the presence of the jury shall not
comment upon the facts of the case, either by
17
commenting upon or recapitulating the evidence,
repeating the testimony of any witness or givning
an opinion as to what has been proved, not proved
or refuted.”
While it’s true that a ruling on the admissability of
evidence and remarks giving reasons for that ruling are
usually not objectionable, they will be if the remarks are
unfair or prejudicial. State v. Toomer, 395 So.2d 1320 (La.
1981). Such prejudicial comments violate defendant's con-
stitutional Fifth Amendment rights to due process of law
as applied to the States through the Fourteenth
Amendment.
The defendant avers that Judge LeBrun’s remarks
were highly prejudicial. They went directly to the question
of if the defendant had a justifiable reason for having the
drugs in his possession. Any further evidence submitted on
the question would have to have impeached not only the
State's evidence but also the comments made by Judge
LeBrun directly to the jury. There is a long standing rule
that such error is fatal to the trial and this Court should
have no choice but to reverse the defendant’s conviction
and declare a mistrial below.
‘Judicial comment upon the facts or the evidence
in the presence of the jury is a non-correctable er-
ror which must result in mistrial or reversal.
C.Cr.P. 772, C.Cr.P. 806, State v. Lonigan, 263
La. 926, 269 So.2d 816 (1972)"’ State v. Brevelle,
270 So.2d 852 (La. 1973) at pages 855 and 856.
The Louisiana Fifth Circuit Court of Appeals, on
page 23 of its decision has stated “‘Here the trial court was
attempting to explain to the jury that they could not con-
sider as evidence what the defendant said about his failure
18
to provide a prescription but that they could consider the
fact that there was no prescription.’’ Both the District
Court and the Appellate Court have gone beyond explain-
ing what was and what wasn’t admissible. The witness had
been asked if either of the co-defendants had provided him
with a prescription for the drugs that had been found. The
witness answered no, and the remainder of his reply was
struck. The trial court’s comments, however, go beyond a
mere statement that no prescription was provided, and
stated that there was no prescription at all. No foundation
had been laid as to whether there was or wasn’t a prescrip-
tion. The only testimony was that the agent was not shown
any prescription. Such a blatant misrescitation of the
testimony is prejudicial to the defendant by weighing
heavily in favor of finding the defendant guilty in the
minds of the jury. The Federal Fifth Circuit Court of Ap-
peals in United States v. Bates, 468 F.2d 1252 (5th Cir.
1972), speaking on prejudicial comments made by a judge
to the jury during a trial, stated:
“It was for the jury to determine which of the
witnesses’ stories would be given credence or in-
deed whether the witness would be believed at all.
The comments by the trial judge clearly infringed
upon the juries credibility determining process
and appellant was thereby deprived of a fair trial.
See Bursten v. United States, 5th Cir. 1968, 395
F.2d 976)" at page 1255
Such a deprivation of a fair trial demands that a
mistrial be declared and this matter be remanded back to
the State District Court for further proceedings.
19
CONCLUSION
For the reasons set forth above, it is respectfully sub-
mitted that this Petition for Certiorari to the Fifth Circuit
Court of Appeals of the state of Louisiana be granted and
further briefs submitted and oral arguments had before
this Honorable Court.
Respectfully submitted,
AMATO & CREELY
JACOB J. AMATO, JR.
DAVID W. BIRDSONG
901 Derbigny Street
P. O. Box 441
Gretna, Louisiana 70054
Telephone: (504) 367-8181
Attorneys for Relator,
Joseph Cathey
20
PROOF OF SERVICE
I, JACOB J AMATO, JR., one of the counsel of
record for Joseph Cathey, depose and say that on the 20th
day of March, 1987, I served three (3) copies of this Petition
for Writs of Certiorari on an Assistant District Attorney
for the Parish of Jefferson, State of Louisiana, by hand.
All parties required to be served have been served.
JACOB J. AMATO, JR.
AMATO & CREELY
901 Derbigny Street
P. O. Box 441
Gretna, Louisiana 70054
Telephone: (504) 367-8181
SUBSCRIBED AND SWORN TO BEFORE ME,
AT GRETNA, LOUISIANA THIS 23rd DAY OF
MARCH, 1987.
NOTARY PUBLIC
A-l
APPENDIX A
STATE OF LOUISIANA - : No. 86KA—111
VERSUS : COURT OF APPEAL
JOSEPH CATHEY FIFTH CIRCUIT
STATE OF LOUISIANA
APPEAL FROM THE TWENTY-—FOURTH JUDICIAL
DISTRICT COURT FOR THE PARISH OF JEFFERSON, NO.
83-1875, DIVISION “I”, HONORABLE WALLACE C.
LEBRUN, JUDGE
EDWARD A. DUFRESNE, JR.
JUDGE
AUGUST 25 1986
(Court composed of Judges Lawrence A..Chehardy, Charlies
Grisbaum, Jr. and Edward A. Dufresne, Jr.)
JOHN M. MAMOULIDES, DISTRICT ATTORNEY, For
Plaintiff-Appellee
DOROTHY A. PENDERGAST, ASSISTANT DISTRICT
ATTORNEY
Office of the District Attorney
24th Judicial District
Parish of JEFFERSON
New Courthouse Annex
Gretna, La. 70053
JACOB J. AMATO, JR. For Defendant-Appellant
DAVID W. BIRDSONG
901 Derbigny Street
P. O. Box 441
Gretna, La. 70054
AFFIRMED
A-2
The defendant was charged with possession of
hydromorphine and possesstion of pethodine in violation of
R.S. 40:967. After preliminary motions the defendant pro-
ceeded to trial by a six-person jury. He was found guilty as
charged and was sentenced to three years at hard labor, a
$5,000.00 fine and various court costs on count one and
was further sentenced to three years at hard labor on count
two to run concurrent with the sentence imposed in count
one.
From this conviction and sentence the defendant has
appealed on the basis of the following fourteen
assignments of error:
(1) Whether a warrant was issued to search the defen-
dant’s apartment, absent which the State has the burden of
proving an exception to the search warrant requirements.
(2) Whether probable cause existed with or without a
warrant to search the defendant’s apartment.
(3) Whether the search of the defendant’s apartment
was conducted as incident to the arrest of Joseph Cathey.
(4) Whether the search of the defendant’s apartment
was pursuant to the defendant’s freely and voluntarily giv-
ing consent.
(5) Whether the defendant, Joseph Cathey, requested
an attorney so that all interrogation, including a request to
search, should have been stopped thereafter.
(6) Whether oral statements made by the defendant,
Joseph Cathey during and after his arrest, were free and
voluntary so as to allow them to be admissible at his trial.
A-3
(7) Whether sufficient notice was given to defendant
of the intent to use his inculpatory statements to give him
time to prepare an adequate defense thereto.
(8) Whether Judge LeBrun abused his discretion in
not allowing a recess in the hearing on the Motion to
Supress to allow another witness to testify.
(9) Whether the prejudicial affect of the evidence of
the defendant’s prior conviction outweighed its probative
value.
(10) Whether a defendant can conduct a full and pro-
per voir dire absent the venire’s arrest and conviction
records, which are used by the State.
(11) Whether the Judge’s actions concerning the
defendant Joseph Cathey’s opening statement prejudiced
the presentation of his case.
(12) Whether Judge LeBrun’s Comments on the
evidence during the trial was sufficient to declare a
mistrial.
(13) Whether insufficient evidence was submitted
such that defendant’s post verdict judgment of acquittal
should have been granted.
(14) Whether in light of the evidence presented a ver-
dict of guilty is consistent with the facts or should a new
trial be ordered below.
FACTS:
Early in May of 1983, a complaint was lodged with
A-4
the Jefferson Parish authorities concerning possible nar-
cotic violations and sex crimes involving the defendant. On
May 3, 1983, a surveillance of the defendant’s mobile home,
located at Jefferson Downs, was conducted. At 11:30 a.m.
Agent Kratzberg, accompanied by Sergeant DeSalvo,
knocked on the door of the defendant’s mobile home. The
defendant answered, clad only in his underwear and pants,
which were unzipped. A juvenile was present and she gave
Agent Kratzberg a marijuana cigarette. The defendant was
arrested for carnal knowledge of a juvenile, indecent
behavior and distribution of marijuana to someone under
eighteen. Agent Kratzberg read the defendant his rights
twice and then, after obtaining consent from the defendant,
searched the trailer. Agent Kratzberg then asked the defen-
dant if he would consent to a search of his epartment,
located at 710 Sunset Boulevard in Kenner, and the defen-
dant stated that he would consent.
While Agent Kratzberg was arresting the defendant,
Sergeant DeSalvo left the mobile home in an attempt to
locate the defendant's girlfriend, Tonia Nolan. He went to
Charles ‘‘Buddy’”’ Genovese, the track superintendent, who
called Ms. Nolan’s office. After two or three phone calls,
Genovese informed DeSalvo that Ms. Nolan was coming to
speak to him. After a period of ten to fifteen minutes, dur-
ing which Ms. Nolan did not appear, DeSalvo instructed
Agents Pinnero and LaChute to proceed to and secure the
defendant’s apartment. DeSalvo then returned to the
mobile home where Kratzberg informed him that the defen-
dant had consented to a search of his apartment. Sergeant
DeSalvo also called Colonel Miller and informed him that
the defendant had been arrested. Miller then went to the
mobile home.
A-5
DeSalvo and Genovese left Genovese’s office and
went to the defendant’s mobile home. Genovese saw that
the defendant was handcuffed and was wearing pants and
shoes but no shirt. Genovese testified at the motion to sup-
press hearing that the defendant asked to use the phone
and the officers told him he could use the phone after he
was booked. There was no phone in the trailer but one could
have been passed through the window. Genovese further
testified that he did not hear the defendant request an
attorney.
After receiving the call from DeSalvo, Agents
LaChute and Pinnero went to the defendant’s apartment.
They knocked on the door but received no reply. Agent
LaChute went to the apartment manager’s office and ob-
tained a key from the assistant manager. The officer then
entered the apartment. Five minutes later, Ms. Nolan ar-
rived. The officers identified themselves and then they and
Ms. Nolan waited for the arrival of the defendant and the
other police officers.
Agent Kratzberg, Sergeant DeSalvo, and Colonel
Miller, along with other officers, transported the defendant
to his apartment. The defendant was brought to a back
bedroom where he was again advised of his rights. Agent
Kratzberg and Colonel Miller asked the defendant for con-
sent to search his apartment and Colonel Miller also advis-
ed the defendant that he did not have to consent. The
defendant was then brought to the living room and allowed
to converse with Tonia Nolan, after which he signed the
consent form. Ms. Nolan signed the form as a witness. The
defendant then led the officers to a green chest in a closet.
He told the officers that if he had anything drug related it
would be in that chest because he was a horse trainer and
the chest contained veterinarian drugs used to treat horses.
A-6
The officers searched the chest and found Dilaudid tablets
and five ampules of Demoral. The defendant told Agent
Kratzberg that he knew the drugs were in the chest and
that they had been given to him by a friend whose name
and address he could not recall.
At trial, Technician Dureau was stipulated an expert
in chemical analysis of drugs. He examined the yellow
tablets and ampules seized from the defendant’s apartment
and concluded that the tablets were Hydromorphine
(Dilaudid) and that the ampules contained Pethidine
(Demoral).
ASSIGNMENTS OF ERROR
The defendant filed fourteen assignments of error in
conformity with C.Cr.P. Art 844. In his brief the defendant
argues fourteen assignments of error, however, these are
not the same fourteen listed in his assignments of error. We
will discuss the assignments of error as numbered and
discussed in the defendant’s brief. A comparison of the
assignments of error and the brief show that the substance
of all the assignments of error with the exception of listed
assignment number ten, are argued in the brief. Assign-
ment number ten is therefore considered abandoned.
Uniform Rules of Court - Courts of Appeal - Rule 2.12-4,
and State v. Smith, 452 So.2d 251 (La. App. 5th Cir. 1984).
ASSIGNMENTS OF ERROR NUMBERS ONE, TWO,
THREE, AND FOUR
In assignments of error numbers one through four, the
defendant alleges that the search of his apartment was il-
legal because (1) the officers did not have a warrant, (2)
SS
A-7
probable cause to search the apartment did not exist, (3)
the search was not justified as a search incident to the ar-
rest of the defendant, and (4) the defendant did not give
voluntary consent to search his apartment.
The testimony at the motion to suppress hearing and
at trial shows that the police officers did not have a war-
rant to search the defendant’s apartment. A search con-
ducted without a warrant is per se unreasonable,
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041
(1973) unless it is justified by one of the well defined narrow
exceptions to the warrant requirements. State v. Her-
nandez, 410 So.2d 1381 (La. 1982). Where a defendant
makes an initial showing that a warrantless search occur-
red, the State bears the burden of proving that the search
is justified under an exception to the warrant requirement.
Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969 (1970); State
v. Tatum, 446 So.2d 29 (La. 1985).
One exception to the warrant requirement is a search
made pursuant to a lawful arrest. United States v. Watson,
423, U.S. 411, 96 S.Ct. 820 (1976): State v. Andriskok, 434
So.2d 389 (La. 1983). The search shall be limited to the area
within the defendants control, from which he can gain
possession of weapons or act to destroy evidence. State v.
Krempel, 471 So.2d 841 (La. App. 2nd Cir. 1985); State v.
Smith, 477 So.2d 893 (La. App. 4th Cir. 1985) citing State
v. Andrishok, supra.
In Vale v. Louisiana, supra, the United States
Supreme Court stated that:
If a search of a house is to be upheld as inci-
dent to an arrest, that arrest must take place
A-8
inside the house, of. Agnello v. United States, 269
U.S. 20, 32, 46 S.Ct. 4, 6, 70 L.Ed 145, not
somewhere outside - whether two blocks away,
James v. Louisiana, 382 U.S. 36, 86 S.Ct. 151, 15
L.Ed.2d 30, twenty feet away, Shipley v. Califor-
nia, supra, or on the sidewalk near the front steps.
399 U.S. at 33-34, 90 S.Ct. at 1971.
In State v. Perkins, 451 So.2d 1146 (La. App. 4th Cir.
1984) evidence of two guns found under a mattress after
the police had secured the apartment and arrested both oc-
cupants was held inadmissible because ‘‘at the time the of-
ficers returned to the bedroom, the area was no longer
within the immediate control of any of the occupants of the
apartment.” Jd at 1151. The reviewing court also sug-
gested that if the police officers ‘thought they had probable
cause to search the apartment for additional evidence, they
should have maintained their security and applied to a
magistrate for a warrant to search.”’ Jd. at 1151.
Thus, it would appear that the search of the defen-
dant’s apartment cannot be considered a legal search inci-
dent to arrest.
One exception to the requirements of both a search
warrant and probable cause for the search is a search con-
ducted pursuant to consent. State v. Raheem, 464 So.2d
293 (La. 1985); State v. Angel, 356 So.2d 986 (La. 1978). In
order to reply on this exception, the State must prove that
the consent was freely and voluntarily given, as shown by
the facts and circumstances of the individual case. State v.
Owen, 453 So.2d 1202 (La. 1984); State v. Ossey, 446 So.2d
280 (La. 1984), Dennis, J. dissent 474 So.2d 440 (La. 1985),
cert. den. Ossey v. Louisiana, ___. U.S. ___. 105 S.Ct. 293
A-9
(1984); State v. David, 425 So.2d 1241 (La.1983) appeai
after remand 468 So.2d 1126 (La. 1984). The voluntariness
of consent is a question of fact to be determined by the
district court judge under a ‘‘totality of circumstances”’
test and his determination is entitled to great weight on ap-
pellate review. State v. Wilson, 467 So.2d 503 (La. 1985)
cert denied, Wilson v. Louisiana, ____ U.S. ___, 106 S.Ct.
281 (1985); State v. Ossey, supra; State v. David, supra;
State v. Dunbar, 356 So.2d 956) (La. 1978). The issue of con-
sent turns on the credibility of the witnesses giving con-
tradictory testimony as weil as the circumstances surroun-
ding the consent. State v. Yarbrough, 418 So.2d 503 (La.
1982); State v. Cover, 450 So.2d 741 (La. App. 5th Cir.
1984) writ denied, 456 So.2d 166 (La. 1984).
In the instant case, the consent to search the defen-
dant’s apartment first occurred after the defendant’s ar-
rest at his trailer. The defendant testified that his consent
was obtained because the police officers pulled his shirt
over his head and threatened to hit him with a tool resembl-
ing a tire iron. However, Agent Kratzberg, Sergeant
DeSalvo and defense witness Charles Genovese all testified
that the defendant was not wearing a shirt when he was ar-
rested. Agent Kratzberg and Sergeant DeSalvo also
testified that none of the officers had a tire iron.
After the police were finished at the defendant’s
trailor, they drove the defendant to his apartment. There,
the State alleges, the defendant again consented to the
search of the apartment.
Agent Kratzberg testified that once he and the
defendant accompained by Sergeant DeSalvo and Colonel
Miller, arrived at the apartment, he again advised the
A-10
defendant of his rights and the defendant again stated that
he was willing to give his permission to search. The defen-
dant then spoke with Tonia Nolan who also resided at the
apartment and she stated she had no objection. The defen-
dant then signed the consent to search form. Ms. Nolan and
Colonel Miller signed as witnesses. Colonel Miller testified
that while at the apartment, he advised the defendant that
he did not have to sign a consent to search. The defendant
stated that he wanted to cooperate but that he also wanted
to speak with Ms. Nolan. After speaking with Ms. Nolan,
the defendant signed the consent to search which was
witnessed by Ms. Nolan and Colonel Miller.
The defendant alleges that he did not willingly con-
sent to the search and that he was coerced into signing the
consent to search form because six or seven police officers
were present and because Ms. Nolan was in custody when
he arrived at the apartment and he was told she would not
be formally arrested if he consented to the search.
However, Agent Kratzberg and Colonel Miller both stated
that they did not tell the defendnat that they would not ar-
rest Ms. Nolan if he consented to the search. In State v.
Burks, 446 So.2d 681 (La. App. 5th Cir. 1985) writ denied,
468 So.2d 681 (La. 5th Cir. 1985) and State v. Vinson, 482
So.2d 48 (La. App. 5th Cir. 1986) the Court evaluated the
validity of consent search where the defendant was under
arrest at the time of the search.
While the circumstances surrounding the
signing of the consent form could indicate subtle
coercion by the arresting agents, it is equally like-
ly that the defendant could have concluded that it
was in his best interest to cooperate. The record
portrays the defendant as intelligent, streetwise,
and articulate. After carefully reviewing the
A-11
record, we find the defendant freely and volun-
tarily consented to the search of his house in
order to secure certain advantages, concluding
that it was in his best interest to cooperate with
the law enforcement authorities.
State v. Burks, 466 So.2d at 686. State v. Vinson, 482 So.2d
at 52. See also State v. Bearden, 449 So.2d 1109 (La. App.
5th Cir. 1984) writ denied, 452 So.2d 179 (La. 1984).
In this case, the trial court did not abuse its discre-
tion in finding that the defendant’s consent to search was
freely and voluntarily given.
The defendant also appears to argue that the entry of
Agents LaChute and Pinnero into his apartment was illegal
and his consent to search was coerced through exploitation
of that illigal entry. In support of this contention, the
defendant cites State v. Ragsdale, 381 So.2d 492 (La. 1980).
In that case, police officers entered the home of one Acott
Girst to search for the defendant. The Louisiana Supreme
Court held the entry illegal because the officers did not
have probable cause to believe the defendant was present.
After the illegal entry, Girst signed a consent to search
form. During the search, methamphetamine was found.
The Louisiana Supreme Court suppressed the evidence of
the drug finding that the consent to search was coerced
through exploitation of the prior illegal entry.
In this case, Agents LaChute and Pinnero were
dispatched to the defendant’s apartment to secure the
premises prior to the arrival of the defendant and the police
officers. Sergeant DeSalvo testified that he dispatched the
agents when Ms. Nolan failed to arrive for questioning,
fearing that she was enroute to the apartment to destroy
A-12
the evidence.
In State v.Bearden, supra this Court approved of a
warrantless seizure to protect the evidence.
[the officers]
had reasonable grounds to believe that if they had
not taken swift action the contraband could have
been moved and/or destroyed, and the supplier
could have eluded prosecution. See United States
v. Thompson, [700 F.2d 944, 950 (5th Cir.)]
The officers were prudent and had reasonable
cause to act as they did in view of the knowledge
they already possessed and the circumstances
presented to them. Therefore, we find that the
seizure of the Arroyo residence (and even its
search, if such had been the case) without a war-
rant was justified and legally valid. 449 So.2d at
1119.
Here, the record presents only the following
testimony to determine whether the agents had probable
cause to believe that the defendant’s apartment contained
illegal drugs: (1) Agent Kratzberg testified that Jefferson
officials received a complaint in reference to possible nar-
cotics violations and sex crimes involving the defendant
(2) Colonel Miller testified that an investigation was pro-
ceeding with reference to a juvenile individual that was
supposedly getting some drugs from an individual out at
Jefferson Downs. (3) That the defendant had given a
juvenile a marijuana cigarette prior to his arrest and (4)
that the defendant's live-in girlfriend did not appear at the
track for questioning when informed that the defendant
had been arrested.
A-13
We agree with the trial judge that the seizure of the
defendant’s apartment was necessary to prevent the possi-
ble destruction of evidence and the consent to search was
freely and voluntarily given by the defendant.
Accordingly, Assignments of Error one through four
lack merit.
ASSIGNMENT OF ERROR NUMBER 5
In his fifth assignment of error, the defendant alleges
that his consent to search was obtained after he had re-
quested counsel and therefore, the evidence seized in viola-
tion of his Sixth Amendment rights is inadmissible.
In State v. Bourgeois, 388 So.2d 359 (La. 1980)
on remand 406 So.2d 550 (La. 1981) defendant was ar-
rested and his suitcase was seized at the New Orleans In-
ternational Airport. While the arresting officer was prepar-
ing a warrant application to search the suitcase, the defen-
dant made a request to call an attorney. The defendant was
advised that be could make the call after the search. The
defendant then agreed to co-operate and asked what he
could do. The arresting authorities responded that he could
consent to the search. The defendant then signed the con-
sent to search form. The Louisiana Supreme Court found
the evidence from the search of the suitcase legal stating
that:
A person’s sixth and fourteenth amendment
right to counsel attaches only at or after the time
that adversary judicial proceedings have been in-
itiated against him. Kirby v. Illinois, 406 U.S.
682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Clearly,
defendant’s right to counsel had not attached at
A-14
the time his request was made. Nor was defen-
dant being interrogated thereby involving his
right to counsel upon request. Miranda uv.
Arizonia, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966). Hence, Agent Egan’s denial of his re-
quest was not improper.
This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER 6
In his sixth assignment of error the defendant
alleges that the state did not prove that his remarks made
to the police concerning the ownership of the green chest
and the drugs found therein were made freely and
voluntarily.
The defendant did not object to the testimony regar-
ding these statements during the trial. C.Cr.P. Art. 891. In
State v. Guiden, 339 So.2d 194) (La. 1981) cert denied 102
S.Ct. 1017, 454 U.S. 1150 (1981) the court held where the
defendant had failed to raise the issue of the inadmissibili-
ty of his confession based on untimely afforded counsel at
trial, he could not raise it for the first time on appeal.
Even had the defendant raised this issue, the defen-
dant’s statements are admissible. The defendant’s actions
in leading the police officers to the chest in the closet and
telling them he was the owner of the truck were done spon-
taneously, and not in response to any questioning. Thus,
the defendant’s statements were admissable. Rhode Island
v. Innis, 446 U.S. 291, 100 S.Ct. 1682 (1980).
This assignment lacks merit.
A-15
ASSIGNMENT OF ERROR NUMBER 7
In his seventh assignment of error the defendant
alleges that the trial court erred in allowing the State to in-
troduce evidence of oral inculpatory statements made by
the defendant when the State did not give notice of its in-
tent to use the statements until immediately prior to the
trial and thereafter. The defendant alleges prejudice in that
he was not given sufficient time to prepare a rebuttal.
C.Cr.P. Art. 768 provides:
Unless the defendant has been granted
pretrial discovery, if the state intends to in-
troduce a confession or inculpatory statement in
evidence, it shall so advise the defendant in
writing prior to beginning the state’s opening
argument. If it fails to do so a confession or in-
culpatory statement shall not be admissible in
evidence. -
Prior to voir dire, the State informed the defense that
the inculpatory statements it intended to use at trial were:
(1) that the defendant told the police officer he had to speak
to Tonia Nolen prior to consenting to a search of his apart-
ment because she also lived in the apartment and (2) during
the search, the defendant told Agent Kratzberg that all the
drugs in the apartment were in a large green chest in the
closet and that the chest belonged to him and contained
drugs and vitamins for horses. At the start of the second
day of trial, while voir dire was still being conducted, the
State informed the defendant that they also planned to in-
troduce the defendant’s statement that the Dilaudid and
Demerol found in the trunk belonged to a friend whose
name he could not remember and who he didn’t know how
to contact.
A-16
The defendant makes no allegations of bad faith on
the part of the State nor does he demonstrate any prejudice
absent a general statement that he was not given time to
prepare a rebuttal. It appears that the notices given on the
first and second days of trial, prior to opening statement,
were sufficient.
The purpose of the notice requirement of C.Cr.P. Art
768 is to prevent surprise and allow adequate time for the
preparation of a defense. Reversal is not mandated when
the defendant does not show that he was prejudiced by the
State’s failure to provide written notice. State v. Parker,
436 So.2d 495 (La. 1983). If a defendant merely asserts that
he was ‘“‘surprised’’, but offers nothing to show how he
would have prepared for trial differently, a reversal is not
warranted. State v. Knapper, 458 So.2d 1284 (La. 1984).
Also, when substantial compliance with the articles
purpose has been met through other pretrial pleadings, the
failure of the State to present notice will not bar introduc-
tion of the statement. State v. Jackson, 450 So.2d 621 (La.
1984); State v. Sneed, 316 So.2d 372 (La. 1975). A hearing
on the free and voluntary nature of the defendant’s state-
ment or a hearing on a motion to suppress is sufficient to
show that the defendant had actual notice of the in-
culpatory statements. State v. Williams, 416 S0.2d 914 (La.
1982).
Here, the defendant was made aware of the existence
of the statements at the motion to suppress the evidence
hearing. Also although the defendant alleges that he had
insufficient time to prepare a rebuttal, he does not argue
that he would have presented his defense differently had he
been provided notice of statements.
This assignment is without merit.
A-17
ASSSIGNMENT OF ERROR NUMBER 8
In this assignment of error the defendant alleges
that the trial court erred in denying his motion to hold open
the motion to suppress hearing to allow testimony of a
police officer who was not present due to his hospitalization
following an operation.
After the trial of a hearing begins, the appropriate
delay is a recess. C.Cr.P.Art. 708. A motion for a recess is
to be evaluated by the same standards applicable to a con-
tinuance. State v. Bice, 407 So. 2d 1234 (La. 1981) footnote
one; State v. White, 389 So.2d 1300 (La. 1980).
In order for the defendant to obtain a recess or conti-
nuance to secure the presence of a witness, he must show
(1) the actual necessity for the witness and the materiality
of his expected testimony, (2) a probability that the witness
will be available at the time to which the trial is deferred
and (3) due diligence in attempting to procure the witness
for trial. C.Cr.P. Art 709; These requirements are strictly
enforced by the courts.
State v. White, 472 So.2d 128 (La. App. 5th Cir. 1985). A
denial of a motion for continuance is not grounds for rever-
sal absent an abuse of discretion and a showing of specific
prejudice. State v. Cochran, 463 So.2d 30 (La. App. 5th Cir.
1985) citing State v. Benoit, 440 So.2d 129, 133 (La. 1983).
In this case, the defendant argues that he was pre-
judiced when the trial court refused to hold open the hear-
ing for the testimony of Agent Pinnero because the
testimony of Pinnero’s companion, Agent LaChute, and
Ms. Bordelon, the assistant manager of the apartment
A-18
complex where the defendant lived, were in direct conflict.
However, the testimony of both LaChute annd Ms.
Bordelon indicates that Pinnero was not present in the of-
fice when LaUhute and Ms. Bordelon discussed whether
the officers had a warrant. Thus, it appears that the agent’s
testimony would not have been able to explain the conflict
in LaChute’s and Ms. Bordelon’s testimony. The defendant
also makes no showing of the materiality of Pinnero’s ex-
pected testimony as per C.Cr.P. Art. 709. Accordingly, we
find no abuse of discretion in the trial court’s denial of the
defendant’s motion.
This assignment is without merit.
ASSIGNMENT OF ERROR NUMBER 9
The defendant alleges that the trial court erred in de-
nying to suppress the evidence of his fifteen year old con-
viction for smuggling illegal aliens. The defendant alleges
that the conviction was stale and irrelevant and the in-
troduction of said conviction was prejudicial.
R.S. 15:495 provides:
Evidence of conviction of crime, but not of
arrest, indictment or prosecution, is admissible
for the purpose of impeaching the credibility of
the witness, but before evidence of such former
conviction can be adduced from any other source
that the witness whose credibility is to be im-
peached, he must have been questioned on cross-
examination as to such conviction, and have fail-
ed distinctly to admit the same; and no witness,
whether he be defendant or not, can be asked on
cross-examination as to such conviction, and have
failed distinctly to admit the same; and no
A-19
witness, whether he be defendant or not, can be
asked on cross-examination whether or not he has
ever been indicted or arrested, and can only be
questioned as to conviction, and as provided
herein.
Pursuant to R.S. 15:462, if the defendant takes the
stand thereby becoming a witness ‘“‘such witness shall be
subject to all the rules that apply to other witnesses, and
may be cross-examined upon the whole case.” A defendant
who takes the witness stand is subject to impeachment in
the same manner as any other witness. State v. Prather,
290 So.2d 840 (La. 1974). “‘Louisiana jurisprudence has not
limited impeachment testimony to recent crimes, nor to
crimes indicative of the credibility of the testifying defen-
dant.” State v. Hartman, 388 So.2d 688, 693 (La. 1980);
State v. Prather, supra.
In State v. Hartman, supra, the reviewing court af-
firmed the trial court’s allowance of a twenty-year old con-
viction into evidence. In State v. Clark, 402 So.2d 684 (La.
1981) the reviewing court found no abuse of discretion in
the trial court’s refusal to exclude the defendant’s convic-
tions which occurred in 1951, despite the fact that the
defendant was pardoned in 1976. In State v. Ferdinand,
441 So.2d 1272 (La. App. 1st. Cir. 1983), writ den. 445
So.2d 1233 (La. 1984) concurring opinion 465 So.2d 742
(La. App. 1st Cir. 1983) the reviewing court stated that it
would not be improper for a court to allow the introduction
of an eight year old conviction.
In the present case, the trial court did not err in
allowing the introduction of the defendant’s fifteen-year
old conviction.
This assignment lacks merit.
A-20
ASSIGNMENT OF ERROR NUMBER 10
In this assignment of error the defendant alleges
that the trial court erred in denying his motion for access
to the computer records concerning the arrest and convic-
tion records of the jury venire.
A defendant’s motion for disclosure of the prior
criminal records of a jury venire presents an issue
analogous to that raised by a motion for the voting record
of each prospective juror. State v. Harvey, 358 So.2d 1224
(La. 1978) or remand 369 So.2d 134 (La. 1979). State v.
Singleton, 352 So. 2d. 191 (La. 1977); State v. Hughes, 436
So. 2d 677 (La. App. 4th Cir. 1983). writ den. 440 So.2d 732
(La. 1983). In order to obtain these records when they are
in the possession of the prosecution, the defendant must
make a showing that the records are necessary to prevent
undue prejudice, hardship or injury to the defendant. State
v. Swift, 363 So.2d 499 (La. 1978); State v. Wright, 344
So.2d 1014 (La. 1977); State v. Blunt, 449 So.2d 128 (La.
App. 4th Cir. 1984). To make this showing, the defendant
must demonstrate that he cannot practically obtain the in-
formation from sources other than the prosecution and
that the State intends to use the information in selecting
the jury. State v. Swift, supra; State v. Singleton, supra;
State v. Blunt, supra; State v. Hughes, supra.
Although the State admitted it was in possession of
the arrest records of the prospective jurors, the State did
not indicate that it planned to use the information in selec-
ting the jury. Thus it may be argued that the defendant did
not show the State’s intent to use the information. State v.
Blunt, supra. However, the assistant district attorney’s
assertion that ‘‘the State can use whatever tools they want
A-21
in preparing their case and any type of criminal record’”’
together with the State’s questioning of each juror concern-
ing any potential arrests may indicate that the State did
use these records in selecting the jury. If such is the case
the defendant need only show that he could not practically
obtain the records by other means. State v. Swift, supra.
The defendant alleges that the arrest records of the
jury venire are confidential and not subject to discovery.
The defense may gather such information from the jurors
themselves on voir dire examination. See State v. Hughes,
supra and State v. Holmes, 347 So.2d 221 (La. 1977). The
transcript of the voir dire elicited the information of the
prospective juror’s arrests and in that way made the infor-
mation available to the defendant. The transcript also
shows that the defendant made no attempt to question fur-
ther the one person. who had been sought from the pro-
secutor was not available through other means.
The defendant argues that requiring the defense to
question the jurors about their possible arrest records is
prejudicial to the defendant as it may offend the prospec-
tive juror. In State v. Hughes, supra, the court stated that
“until defense counsel actually attempts to question the
jurors and until he actually finds them to be alienated
toward his client, his claim is premature.’’ 436 So.2d at 679.
The Hughes court then stated that:
Since the voir dire, selection of the jury and
the trial have all occurred, the defense counsel can
not exercise his right. He must now show that by
not obtaining the information on the jurors he
was actually prejudiced by not having the
information.
A-22
436 So.2d at 679.
In this case, the defendant makes no showing that he
was actually prejudiced by not having the information.
The Louisiana Supreme Court’s last consideration of
this issue occurred in State v. Jackson, 450 So.2d 621, (La.
1984) relied on by the State in this case. The court noted
that although the State admitted it had the criminal
records of 230 prospective jurors and the defendant alleged
he could not practically get these records from other
sources, the defendant still was not entitled to the records.
The Court said at 628-629:
The state conceded it had the information on
prospective jurors’ criminal records and intended
to use it in selecting the jury. Also, defendant
asserts he could not practicably obtain the
criminal records of the 230 prospective jurors
from other sources. Defendant therefore argues
that this non reciprocal advantage of the state of-
fered his due process right to a fair trial. The trial
judge denied defendant’s motion for disclosure
but permitted defendant to question the prospec-
tive jurors about their convictions, if any, but not
about their arrests.
The criminal records of prospective jurors
may be useful to the state in its desire to
challenge jurors with inclinations or biases to the
purpose of defendant’s voir dire: to challenge
jurors whom defendant believes will not approach
the verdict in a detached and objective manner.
Whatever the practical desire of trial counsel, the
recognized purpose of full voir dire is not to pack
the jury with persons favorable to the defendant
or to the state. Under the circumstances of this
A-23
case, defendant was not entitled to disclosure of
the criminal records. Hence, the trial judge did
not err’ in denying defendant’s motion for
disclosure.
This assignment is without merit.
ASSIGNMENT OF ERROR NUMBER 11
The defendant alleges that the trial court erred by re-
quiring that the defendant make his opening statement
after the first state witness had testified rather than at the
start of defendant’s case.
Immediately after the State’s opening statement,
the following occurred:
DEFENSE COUNSEL:
Your Honor, at this time, on behalf of my
client, Bradley Cathey, I will reserve the right to
make my opening statement until the State rests
its case.
THE COURT:
You reserve your right to make an opening
statement?
MR. AMATO:
Yes, your Honor, after the States’s case,
which I’m entitled to do.
A-24
THE COURT:
Okay.
The State called its first witness who testified and then was
excused. The State’s second witness was called, and during
the testimony an objection was lodged which was discuss-
ed outside the presence of the jury. After the discussion,
but prior to the continuation of the witness’s testimony,
the State raised an objection to the defense counsel's reser-
vation of his right to make an opening statement at the
close of the State’s case. At one point during the discussion
the following occurred:
DEFENSE COUNSEL - MR. AMATO:
... One is that my cliant has a right for me to
make an opening statement; two, it’s the Court’s
discretion if I make it after the State’s case. The
law doesn’t say, you know, that I'll...
THE COURT:
Do I have a right to stop you from making it
now?
MR. AMATO:
I don’t think you do, now.
MR. HONIG:
No, your Honor, if he says that he wishes to
make an opening statement, he has that right to
make an opening statement.
MR. AMATO:
And I...
A-25
MR. HONIG:
But the Court can determine wher that
opening statement should be made. It can be
made right now...
THE COURT:
I’m going to require that you make it now.
MR. AMATO:
Your Honor...
MR. HONIG:
Thank you, your Honor.
The Court:
Call the jury back in.
MR. AMATO:
How can I make it now in the middle of a
witness...
THE COURT:
Step down, Mr. Witness and we'll put you
back...
Mr. AMATO:
Well, I’ll waive opening stutement, then, you
Honor, you know, it’s just - you know - and note
my objection that it’s in the Court’s discretion. I
think you could’ve said ‘‘Make it now or waive
i."
The discussion continued until the trial court
A-26
changed its ruling:
THE COURT:
Well, what I believe -- if it’s within my discre-
tion, I believe it would only serve to destruct (sic)
the j jury and I will allow Mr. Amato to make his
opening statement at the conclusion of the
State’s case. But, I will state that I do so only as
a means of trying to ameliorate a situation which
was brought about by this mis-information that I
obtained from Mr. Amaio, whether it is correct or
not.
However, at the conclusion of the State’s case, the
defendant called his first witness making an opening state-
ment. Thus it may be concluded that the defendant waived
his opening statement. The defendant has the right to
waive an opening statement. C.Cr.P. art 765; State v. Seiss,
428 So.2d 44 (La. 1983).
This assignment is without merit.
ASSIGNMENT OF ERROR NUMBER 12
In this assignment of error the defendant alleges
that the trial court erred in commenting on the evidence,
thereby predudicing the jury.
At the trial, the folowing occurred:
BY THE STATE:
Now, let me ask you a question, Did Mr.
Cathey or Ms. Nolan provide you with any
prescription for those -- for the Demoral or the
Di.audid?
A-27
AGENT KRATZBERG:
No. Mr. Cathey stated to me he did not have
a prescription for either of those two drugs, and
he stated that he had gotten them from a friend.
MR. AMATO:
Your Honor, I have an objection I'd like to
tender out of the presence of the jury or at the
Bench.
After discussion outside the presence of the jury regarding
the admissibility of statements allegedly made by the
defendant, the trial court instructed the jury:
a.
Okay, ladies and gentemen of the jury, I want
you to disregard anything that attributed to the
defendant as having said he had no prescription,
and-just disregard that entirely. But you do not
necessarily have to disregard the fact that he had
no prescription, according to the testimony of the
-- no prescription was given to him or shown to
him. Okay.
No further objection was made by the defendant.
Initially, it should be noted that the defense counsei
did not object or move for a mistrial when the trial court
admonished the jury and seeks to raise this issue for the
first time on appeal. If the defendant fails to object to the
comments at the timne they are made, he waives his right to
raise the issue on appeal. C.Cr.P. art. 841: State v. Ellwest
Stereo Theatres, Inc., 412 So.2d 594 (La. 1982); State v.
Gultry, 471 So.2d 804 (La. App. 5th Cir 1985). C.Cr.P. art.
772 provides: ‘‘the judge in the presence of the jury shall
not comment upon the facts of the case, either by commen-
ting upon or recapitulating the evidence, repeating the
A-28
testimony of any witness, or giving an opinion as to what
has been proved, not proved, or refuted.”’
This article does not apply to the trial judge’s
reasons for rulings on objections relating to the admissibili-
ty of evidence, or to explain the purpose for which evidence
is offered or admitted, provided the remarks are not unfair
or prejudicial to the defendant. State v. Knighten, 436
So.2d 1141 (La. 1983) cert denied Knighten v. Louisiana,
465 U.S. 1051, 104 S.Ct. 1330 (1984); State v. Williams, 397
So.2d 1287 (La. 1981) remand for resentencing 414 So.2d
371 (La. 1982); State v. Gultry, supra. Also, the trial
judge’s comments on the evidence have been held to be
harmless error if those remarks do not imply an opinion as
to the defendant’s guilt or innocence. State v. Joseph, 437
So.2d 280 (La. 1983); State v. Felde, 422 So.2d 370 (La.
1982) cert denied. Felde v. Louisiana, 461 U.S. 918, 103
S.Ct. 1903 (1983); State v. Gultry, supra.
Here the trial court was attempting to explain to the
jury that they could not consider as evidence what the
defendant said about his failure to provide a prescription
but that they could consider the fact that there was no
prescription.
The trial court was explaining to the jury what was
admissible as evidence and what was not admissable. Also,
the trial court did not imply am opinion as to whether he
thought the defendant was guilty.
This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER 13
The defendant alleges that the trial court erred in
A-29
denying his post judgment verdict of acquittal because the
State failed to prove ‘‘guilty’’ knowledge and because the
State failed to introduce the actual drugs found during the
search.
When reviewing the evidence to support a convic-
tion, the standard to be used by the appellate court is
whether, viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have
found the defendant guilty beyond a reasonabble doubt.
Jackson v. Virginia, 443 So.2d 676 (La. 1984). Here the
defendant was convicted of two counts of possession of a
controlled dangerous substance in violation of R.S. 40:967.
To support this conviction the State must prove that the
defendant was in possession of the illegal drug and that he
knowingly possessed the drug. The State need not prove
actual possession. Constructive possession is sufficient to
support the conviction. State v. Trahan, 425 So.2d 1222
(La. 1983). A person may be considered to be in construc-
tive possession if the illegal substance is subject to his
dominion and control. State v. Trahan, supra.
In the present case, the State introduced evidence to
show that the drugs were found in a green chest in the
defendant’s closet and that the defendant told the sear-
ching agent that the drugs had been given to him by a
friend. The defendant alleged that he did not know the
drugs were in the trunk.
In this case, however, Agent Kratzberg testified that
the defendant toid him that he knew the drugs were in the
chest. The defendant denied teiling the officer that he knew
they were there. The reviewing court may not negate or
disregard the testimony of a witness merely because it is
A-30
contradicted by another witness. The trier of fact is the
determiner of the credibility of witnesses. State v. Arnaud,
412 So.2d 1013 (La. 1982). Here the jury was entitled to
believe the testimony of Agent Kratzberg. Given that
testimony, a rational trier of fact could have found the
defendant guilty of two counts of possession of a controlled
dangerous substance.
The defendant also argues that the evidence to con-
vict was insufficient because the State failed to introduce
the actual drugs seized in the search of the apartment.
A similar issue was addressed by the Court of Appeal
for the Second Circuit in State v. Green, 448 So.2d 782 (La.
App. 2nd Cir. 1984). In that case a lab report was introduc-
ed to identify the drug seized as marijuana. At trial, the
defendant objected, alleging that the State failed to
establish a chain of custody when it failed to enter the mari-
juana into evidence. The trial court overruled the objection.
On appeal, the defendant again alleged error, arguing that
the marijuana itself was the best evidence and should have
been produced under R.S. 15:436. The reviewing court
found the argument meritless at 448 So.2d 786:
The best evidence objection was not made in
the trial court and cannot properly be raised on
appeal. In any event, however, absent a showing
of some prejudice to the defendant, the best
evidence rule will not be applied unreasonable.
State v. Moore, 419 So.2d 963 (La. 1982). The
defendant has failed to show how he was prejudic-
ed by the introduction of only the lab report and
not the physical evidence itself. No reversible er-
ror is shown. This assignment lacks merit.
A-31
Here, at the close of the State’s evidence, the defen-
dant moved for a mistrial alleging that insufficient
evidence existed to prove that the defendant had drugs and
no chain of evidence existed. However, the State introduc-
ed the testimony of the officers who found the drugs and
also the expert who analyzed the drugs. This is sufficient
to prove that illegal drugs were seized from the defendant's
apartment. in addition, the defendant makes no showing of
prejudice resulting from the admission of the testimony
rather than the drugs.
This assignment is without merit.
ASSIGNMENT OF ERROR NUMBER 14
In his last assignment of error the defendant alleges
that the trial court erred in denying his motion for new trial
urged on the ground that the verdict was contrary to the
law and evidence. In support of this claim the defendant
reargues his assignments of error. Because these
assignments do not warrant reversal, the trial court did not
err in denying the defendant’s motion for new trial.
This assignment is without merit.
Accordingly, the conviction and sentence are
affirmed.
AFFIRMED
A-32
APPENDIX B
STATE OF LOUISIANA 24TH JUDICIAL DISTRICT
COURT
VERSUS PARISH OF JEFFERSON
STATE OF LOUISIANA
JOSEPH CATHEY AND NO: 83-1875
TONIA NOLAN DIVISION: “I”
FILED:
DEPUTY CLERK
MOTION TO SURPRESS EVIDENCE
NOW INTO COURT, through undersigned counsel,
comes JOSEPH CATHEY, defendant herein, and moves
the Court to suppress for use of evidence herein all objects
or other property, documents, books, papers, investiga-
tions, reports, or any and all other writings presently in the
possession of the State, the description of which is
unknown to Mover, on the grounds that such were obtain-
ed through an unconstitutional search and seizure.
Respectfully Submitted,
AMATO & CREELY
JACOB J. AMATO, JR.
901 Derbigny Street
P. O. Box 441
Gretna, La. 70054
Telephone: 367-8181
ORDER
CONSIDERING the foregoing,
IT IS ORDERED that the State of Louisiana show
cause on the day of 18, &
A-33
o’clock ___m., why the foregoing motion should not be
granted.
Gretna, Louisiana, this day of
, 1983.
JUDGE
PLEASE SERVE:
District ATTORNEY’S OFFICE
PARISH OF Jefferson
STATE OF LOUISIANA
Filed
Dec 8 1983
A-34
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON
STATE OF LOUISIANA
*
STATE OF LOUISIANA * NO. 83-1875
VS. °
JOSEPH CATHEY :
AND °
TINIA NOLAN ° DIVISION “IT”
* * * *€ *&€ & & & € EEE & KK HE KE OK KOK OK OF
Proceedings taken in the above captioned cause heard in
open court at Gretna, Louisiana, before the Honorable Wallace
C. LeBrun, Judge, presiding on May 16, 1984.
APPEARANCES:
Jacob Amato Representing Mr. Cathey
Patrick McGinity Representing Ms. Nolan
Erick Honig Representing the State
Reported by: Laura A. Mesko OCR, CSR.
Well, I can put’em in the record.
(Short recess.)
(After recess.)
A-35
THE COURT:
Okay, the Court is -- I read the memorandum,
which I take to be on behalf of both defendants.
MR. MCGINITY:
Yes, your Honor.
THE COURT:
I -- and the memorandum indicates to this
Court, that there was argument that was made by
counsel for both defendants to the effect that the
evidence should be suppressed on _ several
grounds.
One, that the consent was not freely given.
Another to the effect that an arrest was made in
one place and the consent was given in another
place, and -- namely the motor home as opposed to
the apartment.
I find that that’s a question of fact, to be
determined by one who listens. Mr. Amato stated
in his argument, which he says was only argu-
ment, and which the Court agrees is only argu-
ment and not facts, that certain statements that
were uncontradicted. That’s not true, The Court
heard the testimony of the officers, all of whom,
were demanded to be heard by the defense.
And every one of them said too many things
to make it im - to make it so that the Court
believes it would be most improbable that they’d
be lying on all of those things.
The testimony that I heard was contrary to
what Mr. Amato argued. They argued that there
was consent that was freely given and all of them
A-36
testified to that effect, as far as the Court
remembers. They testified that there wasn’t any
shirt on Mr. Cathey. That when they went in
there all he had on was a pair of pants with his
zipper open and no shoes and socks.
So Mr. Cathey testified that as a matter of
fact, that he -- they pulled the shirt over his head,
and that he - you know, his visibility was
obscured by the fact that the shirt was pulled
over his eyes.
Every one of them testified that he didn’t
even have a shirt on.
Furthermore, the telephone conversation
was the defense’s own witness -- what was his
name? Genovese. Mr. Genovese testified that he
didn’t hear anything about a telephone ’til after
he was redirected by Mr. Amado and as the State
says, he was instructed to what to say. And I
believe that’s what happened.
I’m -- I have heard throughout this case, con-
tradictions, Miss Tonia Nolan testified that she
was hysterical. Well, I’ve seen her in this Court
throughout this proceeding and she seems cool as
a cucumber to me, and not hysterical. I don’t
think that she was hysterical at all.
And testimony was that she -- by the police
was, that she was in fact, willing for the consent
to happen, to the search to be made and in fact,
she testified as I recall, that she had no objections
but that she didn’t sign a consent deal until after
Mr. Cathey had signed it, sometime. But she look-
ed at the signature and thought that Mr.
Cathey’s signature looked kind of scribbly, as I --
something to that effect. That it wasn’t his nor-
mal signature.
A-37
But, it indicates to the Court -- to me, that she
did not know what it was that she was signing
and that she did -- and I do believe that she gave
oral consent. And that happened in the same
place.
So therefore, the Court is of the opinion that
the motion to suppress should and is therefore,
denied.
MR. AMATO:
Your Honor, would you kindly note my objec-
tion on behalf of my client, Bradley Cathey.
THE COURT:
Yes sir.
MR. MCGINITY:
And also on behalf of Miss Nolan.
THE COURT:
So ordered.
MR. AMATO:
Your Honor, at this time, I’d like to ask that
-- can I approach the Bench just for a second?
THE COURT:
Yeah, You want it to go on the record?
MR. AMATO:
No.
(Counsel approached the Bench.)
A-38
MR. AMATO:
Your Honor,, at this time, I’m gonna ask that
the Court give us sufficient time to apply to the
Fifth Circuit Court of Appeals for writs in this
matter. And that, we will file notice of intention
to apply for writs
A-39
STATE OF LOUISIANA 24TH JUDICIAL DISTRICT
COURT
VERSUS PARISH OF JEFFERSON
STATE OF LOUISIANA
JOSEPH CATHEY AND NO: 83-1875
TONIA NOLAN DIVISION: “I”
MOTION FOR POST-VERDICT
JUDGMENT OF ACQUITTAL
NOW INTO COURT, through undersigned counsel,
comes JOSEPH CATHEY, defendant herein, who respect-
fully moves this Court for a Judgment of Acquittal follow-
ing the verdict of guilty returned on May 3, 1985, on both
charges lodged against him, based on Article 821 of the
Louisiana Code of Criminal Procedure. The defendant
avers that under the ruling of Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979), the evidence
presented, when viewed in a light most favorable to the
State, is insufficient te support a finding of guilt, for the
reasons set forth in the Memorandum in Support filed
herewith.
Respectfully Submitted,
AMATO & CREELY
/si Jacob J. Amato, Jr.
JACOB J. AMATO, JR.
DAVID W. BIRDSONG
901 Derbigny Street
P. O. Box 441
Gretna, La. 70054
Telephone: 367-8181
A-40
ORDER
CONSIDERING THE FOREGOING
MOTION, the District Attorney is
ordered to appear and show cause on
the ____ day of ;
1985, why the defendant’s Motion for
Judgment of Acquittal should not be
granted.
Gretna, Louisiana, this___ day
of , 1985.
JUDGE
PLEASE SERVE:
DISTRICT ATTORNEY
JEFFERSON PARISH
A-41
STATE OF LOUISIANA 24TH JUDICIAL DISTRICT
COURT
VERSUS PARISH OF JEFFERSON
STATE OF LOUISIANA
JOSEPH CATHEY AND NO: 83-1875
TONIA NOLAN DIVISION: “I”
FILED:
DEPUTY CLERK
MEMORANDUM IN SUPPORT OF MOTION FOR
POST-VERDICT JUDGMENT OF ACQUITAL
MAY IT PLEASE THE COURT,
The United States Supreme Court in Jackson uv.
Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979), has set forth the standard followed by the Louisiana
legislature in adopting Article 821 of the Louisiana Code of
Criminal Procedure, for when a Judge can act to grant a
Judgment of Acquittal after a verdict has been returned.
This is a minimum standard which, should the evidence
presented at trial fail to support, entitles the defendant to
a verdict of acquittal, irregardless of the jury’s decision.
See State v. Smith, 441 So.2d 739 (La. 1983).
The evidence introduced at the trial herein was insuf-
ficient to convict the defendant when taken as a whole.
First, because the State failed to prove that Joseph Cathey
had any “guilty knowledge” as to the presence of the drugs
found in his trunk and that they were controlled dangerous
substances. See State v. Trahan, 425 So. 2d 1222, (La.
1983), and State v. Perique, 340 So.2d 1369, (La. 1976). The
trunk contained numerous medicines for the treatment of
A-42
horses and was accessible by several different people. The
burden is upon the State to prove that Mr. Cathey par-
ticularly knew that the drugs were in the trunk and that
they were controlled dangerous substances and such facts
are essential elements of the charges of which he was con-
victed. Absent any evidence to support these facts a
reasonable doubt exists as to this particular element of his
crime end a conviction cannot be based on the totality of
the evidence presented with this particular evidence
missing.
The evidence is also insufficient in that the State fail-
ed to introduce the drugs allegedly found in Mr. Cathey’s
apartment. The legal presumption that evidence under the
control of a party and not produced by that party was not
produced because it would not have aided him (L.R.S.
15:432) was not rebutted by evidence by the State and
therefore must be given the legal presumption to which it
is entitled. As a whole, the totality of the evidence is insuf-
ficient to support a finding of guilt and Mr. Cathey is
therefore entitled to a verdict of acquittal from this Court
as prayed for.
Respectfully Submitted,
AMATO & CREELY
/s/ Jacob J. AMATO, Jr.
JACOB J. AMATO, JR.
DAVID W. BIRDSONG
901 Derbigny Street
P. O. Box 441
Gretna, Louisiana 70054
Telephone: 367-8181
A-43
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON
STATE OF LOUISIANA
-
STATE OF LOUISIANA * NO. 83-1875
VS. °
JOSEPH CATHEY ¢
AND °
TINIA NOLAN . DIVISION “IT”
yee Se ee See ae, ee ee Bae, A, cre, ee
Proceedings taken in the above captioned cause heard in
open court at Gretna, Louisiana, before the HONARABLE
WALLACE C. LEBRUN, JUDGE, presiding on December 14,
1985
APPEARANCES:
Jacob Amato Representing Defendant
Erick Honig Representing the State
Reported by: Laura A. Mesko OCR, CSR.
A-44
PROCEEDINGS
MR. HONIG:
Your Honor, this is numbers 24 and 42:
Joseph Cathey.
THE COURT:
All right.
MR. AMATO:
Your Honor, at this time we have a couple of motions
which are pending before the Court and before sentencing.
I think the court has to dispose of them.
Your Honor, one is a motion for post verdict judg-
ment of acquittal and I ask that the court at this time sit
as the thirteenth member of the jury. And, under Article
821 of the Code of Criminal Procedure, it provides that the
defendant may move for a post verdict judgment of acquit-
tal following the verdict and motion for a post verdict judg-
ment of acquittal, must be made and disposed of before
sentencing, Your Honor. I’d like to point out to the Court,,
sub-section B. “*...A post verdict judgment of acquittal,
shall be granted only if the Court finds that the evidence
viewed in a light most favorable to the state, does not
reasonably permit a finding of guilt’’.
I’d like to point out to the Court, two glaring errors
that I think tha’ took place during the trial that the Court
should consider with regard to this particular motion. One,
is that the State during the trial in chief, did not produce
the evidence in question, narcotics, which is allegedly the
A-45
defendant possessed. And, that they did not adequately ex-
plain why it was not produced in Court. And, that, you
know, theoretically or technically, the State had no
evidence before this Court or before the jury, with which to
find the defendant guilty.
They talked about what they found; they talked
about it being analyzed, but they never brought the
evidence into Court. And, I think that the law is, is that its
presumed that the person who was in possession of the
evidence who doesn’t produce it, it is presumed that its not
what they say it is.
Your Honor, the other part of this motion deals
with...that the State, failed to prove during the trial, and I
think to perhaps the Court’s satisfaction or able to prove
that the defendant actually knowingly possessed the drugs
in question, I think ...I think that the review of the
testimony indicates that this man did not know what was
in Payne Roy’s foot locker that was in his apartment.
I think its clear that the testimony of my client, the
testimony of Tanya Nolan, the testimony of the truck
driver who was involved in bringing the stuff from North
Louisiana, the man and his wife in North Louisiana where
this stuff was picked up from, you know, clearly indicates
that the objects which were stolen... which were in Mr.
Cathey’s apartment, were in fact, belonged to a third party.
Mr. Cathey’s testimony indicated that he told the
police that this wasn’t his, that it in fact, belonged to a
Payne Roy. Your Honor, I think that we have shown ~
enough evidence which contradicts the testimony of the
police or, at least, able to explain away the possession of
A-46
the drugs in question. That there is a reasonable apprecia-
tion that the Court can take that the man did not knowing-
ly, possess any drugs.
And, here again, its the State’s burden to prove that
beyond a reasonable doubt and I think that the State failed
to do that in this particular case, because what we
have...what we had, was that the police searched an apart-
ment, lo and behold, here’s contraband in the apartment;
ergo, my client’s guilty of possession of it. I don’t think
that our construction provides...I think that the State has
to go further than that.
Your Honor, at this time, that’s the argument I have
on the motion for--
MR. HONIG:
Your Honor, just a brief...briefly, to answer. Twelve
jurors, sat through the trial, heard the evidence; they found
that there was sufficient evidence to show that the defen-
dant was in possession of those drugs, whether or not the
drugs produced, they decided that he in fact, possessed
drugs.
And, second of all, they found that there was enough
evidence that he knowingly, intentionally, possessed the
drugs. And, I believe after deliberation for a couple of
hours, the defendant...the jury, 12 people on a jury, found
that there was sufficient evidence; and it was a unanimous
verdict, Your Honor. So, I believe that...I believe it was
unanimous.
MR. AMATO:
I don’t think we polled the jury, Your Honor.
A-47
MR. HONIG:
Even so, it had to be a unanimous verdict in a 6 per-
son jury; I believe it was a 6 person jury. So, it had to be
unanimous anyway. Or, 12 or 6 jurors, or whatever, they
found that, and I don’t believe the Court should take that
verdict out of the hands of the jury.
MR. AMATO:
Your Honor, the only problem is, is that Article 821
of the Code says that its your obligation to take it. And if
you feel that the state did not prove...and listening to the
evidence most favorable to the State, you could overturn
that verdict.
THE COURT:
According to what you just read me, Mr.
Amato, you said that if the Court believes that
the State has not proved the entirety of its case,
considering the fact that anything in doubt has to
be taken to light most favorable to the State.
Okay, now, if I do that, that eliminates any doubt
from me, ‘cause the most favorable thing to the
State is that they find what they said they found.
MR. AMATO:
But...
THE COURT:
Mr...and let me explain..Excuse me, Mr.
Amato, lemme finish reading from this report,
which I believe is something that Mr. Cathey,
either shouldn’t have said or he didn’t realize
what he said.
A-48
He said the subject is...I’m reading right from the
report. He stated he knew that he had in his foot locker,
which was in the closet and there were no illegal drugs in
the foot locker. The subject, that is, Mr. Cathey, feels that
the mother of the alleged victim in the carnal knowledge of
a juvenile, charge, must have told the police that he had il-
legal drugs in his residence. That’s his prerogative to
believe what he wishes.
The subject stated again, that he knew what he had in
his foot locker and that there were no illegal drugs in that
locker. He stated that for all he knew, Mr. Payne Roy own-
ed the drugs. He stated that if Payne Roy did not own the
drugs, then they must have been planted by the Jefferson
Parish Sheriff’s Office.
You know, so on the one hand he said he knew it wasn’t
there and then right in the next sentence he says if it was
there, it must have been Mr. Payne Roy’s stuff. So, it had
to... he had...you have to admit that the possibility exist
that he knew it was there.
MR. AMATO:
Your Honor, I think...
THE COURT:
And, if he knew it was there, he knew and
knowingly possessed it.
MR. AMATO:
I think that...
THE COURT:
Now, I’m going to tell you something about
this case that really... that really is impressive to
me.
A-49
I have here a packet of letters, which I think
exceeds 50, in number...
MR. AMATO:
Yes, Your Honor.
THE COURT:
and it seems as though there was a coor-
dinated plan to have people write, because a lot of
them wrote almost verbatim the same thing, yeu
know, like as if somebody told them write this,
and they wrote that.
Some of the people that wrote ‘em, are
respected people of the community; business peo-
ple and so forth. I have letters that say that Mr.
Cathey is a very imminent horse trainer. One of
them says that they think he’s one of the top
three people in...at Jefferson Downs. That he
works very hard, diligently, and so forth. But, we
also have the problem, that if we come to who we
believe, Mr. Cathey, is a formerly convicted felon,
which I think he did a dastardly thing, by helping
to bring in foreigners across the border, you
know, for which he was convicted. Of course, that
was some 10 or 12 years ago.
MR. AMATO:
Fourteen years ago, Your Honor.
THE COURT:
Well, whatever, it was a long good while ago,
and I think he’s paid his penalty for that. But, at
the same time, it has a bearing on whether...if
A-50
there’s a credulity situation involved, I cannot
believe him over an officer, who admittedly
doesn’t have any reason to go against him. None
of them has been told to me, that there’s a reason
for the narcotics agents to fake the situation and
plant the stuff in his house. You know, I can’t ex-
plain it. I can’t explain why he didn’t demand a
search warrant; I can’t demand...understand a lot
of things. But, at the same time, you know, I find
that the verdict of the jury, I should not change,
you know. So, if you have something to say for
the record, Mr. Cathey, I’d be happy to listen to
what you say...
MR. AMATO:
Your Honor, I have another motion too. I take it by
that, that you have overruled my motion for a post
verdict...
THE COURT:
Yes, sir, that’s fair...
MR. AMATO:
...1’d like that you note my objection, Your Honor, for the
record...
THE COURT:
Yes, sir, I do note your objection for the
record.
MR. AMATO:
Your Honor, we have also another motion for a new
trial under Article 851, which is different than the Motion
for Post Verdict Judgment of Acquittal, under 821. And, at
A-51
this time, Your Honor, I’d like to read that Article to the
Court.
THE COURT:
All right.
MR. AMATO:
‘*...That the Motion for a new trial was based on the sup-
position that injustice has been done the defendant, and,
unless such is shown to have been the case, the motion shall
be denied, no matter what the allegation is grounded. The
Court on the motion of the defendant, shall grant a new
trial whenever; the verdict is contrary to the law and the
evidence:. Your Honor, I think here again, we get to the
...to the question of, you know...
THE COURT:
Whether it is or not.
MR. AMATO:
..you know, basically, that they didn’t produce any
evidence. That they also failed to show that this man ac-
tually possessed it of it and it being... you know, its just
like if someone found drugs in this courtroom, is it your
drugs? you know, I think the state has to do more than
that. I understand that; that takes it to some extreme, con-
sidering that an apartment is...or, my house, you know, or
your house. But, Your Honor, I think that the State has
that additional burden to show that this was knowingly
and intentionally done on Mr. Cathey’s part, that he
possessed these drugs.
Your Honor, also, the article provides that; ‘‘...The
A-52
court’s ruling on a written motion or objections made dur-
ing the proceedings, show prejudicial error’. Your Honor,
I'd like to point out to the Court, that we’ve still have alleg-
ed and continue to allege, that the search of the defendant’s
apartment, was an illegal search and seizure, and therefore,
that any evidence gained, should have been suppressed,
which this Court has overruled.
THE COURT:
You've already done that. That’s in the
record, isn’t it?
MR. AMATO:
Yes, Your Honor, its in the record.
Your Honor, there’s also in our motion for a new
trial, that there was some testimony that came out and I
would like to, if I could, point it out to the court, where the
court commented on the evidence. On page 49 of the trial
transcript...this is a quote, Your Honor. ‘‘...Did Mr. Cathey
or Miss Nolan provide you with any prescriptions for
those,for the demoral or delaudid?”’ Trial transcript, May
2nd, proceedings, page 49. To which, Agent Kratzberg
answered as follows: “‘...No, Mr. Cathey stated to me that
he did not have a prescription for either of those two drugs
and he had stated that he’d gotten them from a friend’’;
and, that’s the trial transcript. I objected to the above
*estimony on the basis, the witness testified to an oral
statement of Mr. Cathey, without the state giving written
notice to use of such statement. In response to this, the
trial court issued the following admonition to the jury.
‘*...Okay, ladies and gentlemen of the jury, I want you to
disregard anything that is attributed to the defendant as
having said he had no prescription and just--just regard
that entirely. But, you do not necessarily have to disregard
a Here ee
A-53
the fact that he had no prescription, according to the
testimony of...no prescription was given to him or shown to
him. Okay?’’ Your Honor, I ask that that admonition to the
jury was highly prejudicial and when you commented, you
do not necessarily have to disregard the fact that he had no
prescription’, Your Honor, that’s prejudicial to the defen-
dant. It might well have been the reason why the jury
found the defendant guilty, was the court’s com...I’m sure
it wasn’t done intentionally, but, you know, it well might
have been the straw that broke the camel’s back. And, I
think the court should take that into consideration in
weighing whether a new trial should be given or not.
Your Honor, I again point out, that the State failed
to produce any evidence, the vials of demoral, or delaudid
or the tablets or whatever ...Whatever, they said they took
from the defendant.
Your Honor, also that there was... at the beginning
of the trial, when the state informed us that they were go-
ing to attempt to use oral statements of defendant, I asked
that the court limit the oral statements. that the state in-
tended to prove or to introduce, since it was my experience
with these particular officers, that they would say
whatever needed to be said.
And, I think that the...that they, you know, went
over what they court had allowed to come in as oral state-
ment of the defendant. I think that the court needs to
review the transcript in order to determine that.
Your Honor, also that the state failed to show that
the statements that the defendant,...prior to their introduc-
tion,the state failed to show that they were freely and
voluntarily given. The state just put the police officers on
the stand and just whatever they testified to without a
foundation...a proper foundation, being laid, that they were
A-54
freely and voluntarily given. I think also, Your Honor, that
the court, under this particular Article has a discretion,
that this is why the people of this parish have elected you
to be the judge, Your Honor. Its your job to sit there and
weigh what went on and what didn’t go on and which
you're aware of, and if you feel that you have that feeling
in your heart, that something didn’t go right in this trial,
then its the court’s obligation under this article to grant a
of the opinion that the ends of justice would be served by
granting of a new trial, although the defendant might not
be entitled to a new trial as a matter of strict legal right;.
That is, Your Honor, if you feel that as an accumulation of
all of these thing that I’ve pointed out to the court, that a
miscarriage of justice has taken place as we've alleged, that
its your obligation as a judge, and your duty as a judge, to
say, well, we’re going to cure it and we’re going to grant the
man a new trial; which we’re asking you to do at this time.
Thank you, Your Honor.
MR. HONIG: 7
The State would submit it on the previous argument,
Your Honor
THE COURT:
Okay. Your argument is very... very well
thought out and planned
MR. AMATO:
Thank you, Your Honor.
a eT TS
A-55
THE COURT:
However, I want to tell you that I don‘t have
a doubt in my mind that Mr. Cathey is guilty. The
Articles that you read to me indicate that these
has to be something that the court is convinced of
a miss...miss---carriage of justice and that the
state’s evidence was insufficient; I don’t believe
that.
I know we have a difference of opinion, but I
am sworn to abide by my own opinion, based on
the evidence that I heard. With regard to the ad-
monition that I made to the jury, I think that
what I did was correct in telling them to
disregard it and I informed them at the time to
disregard that entirely. If the court of appeals or
the Supreme Court thinks that what I did was er-
roneous to the point that it would make a dif-
ference in the outcome of the trial, they have the
right to do that, to change it. And, this is not the
final salvo of the battle; you know that and I
know that. But, at the same time, I don’t feel as
though I can justifibly accede to your request,
although I have a great admiration for your abili-
ty, and I also deeply respect you as a person...
MR. AMATO:
Thank you, Your Honor.
THE COURT:
I cannot...I cannot sacrifice my own feelings.
And, if I did, I would be less of a man then I
would like you to be.
A-56
MR. AMATO:
I agree, Your Honor.
THE COURT:
And, so, I have to rule in accordance to what
I believe is correct. If I’m wrong, then I ask the
forgiveness of God in Heaven and everybody in-
volved, because I know I’m not doing it
maliciously and I’m not doing it in any way,
without some very serious thought. This matter
was continued at the request of the defendent, 3
times, so that I would have more chance to study |
this thing. And, for your information, I studied it
last night until midnight, because I was looking |
for something, that if I was wrong, I would like to |
correct it. I don’t think I am. But, you know,
that’s the way the situation comes tq be,
sometimes. And, so, therefore, I’m going to, at
this time, sentence Mr. Cathey to the Louisiana |
Department of Corrections... ° )
MR. AMATO:
Your Honor, I would like to note...
THE COURT:
..and I’m going to sentence him to 3 years at
hard labor, plus a fine of $5,000 and costs. And, ;
of course, I’m willing to allow him to be out on ;
bond while you have an appeal, ‘cause you have a
right of appeal since the sentence is less than 5
years.
A-57
MR. AMATO:
Your Honor, I'd like to just to make the record com-
plete, note my objection to the court’s overruling my mo-
tion for a new trial and I’d also object to the sentence that
the Court has imposed. And, Your Honor, I am fully aware
of the... the effort and soul searching that this is...you
know, I thank the court. I know you've taken some time
and some consideration and I appreciate that...
THE COURT:
Okay, thank you. I appreciate your...
MR. AMATO:
..amd my client appreciates it, Your Honor...
THE COURT:
...1 appreciate that, but I just have my own feel-
ings and my own conscience that I have to deal
with.
MR. AMATO:
Your Honor, I have...
THE COURT:
And, I also respect Mr. Cathey’s position as
a well regarded trainer; all these letters couldn’t
be for nothing, you know.
A-58
MR. HONIG:
Your Honor, may I just question one thing? There’s
two counts, is this 3 years that are concurrent or is it one
and a half on each count?
THE COURT:
No, its going to be 3 years to be concurrent.
MR. HONIG:
Three years on each count, concurrent then.
THE COURT:
Right.
MR. AMATO:
Your Honor, I have a written motion and I ask that
the court...for releasing the defendant out on bond and I
have a bondsman present, Your Honor, to make ...hopefully
to make the bond.
THE COURT:
Okay.
MR. AMATO:
Your Honor, I have a motion for an appeal at this
time and ask the court to sign same; it has to be filed before
all the other motions...
A-59
THE COURT:
A motion for appeal? You’ve got to do it now,
they changed the law. You know, you've got to do
it within 45 days after the...all the costs are paid
for the transcript and all.
(colloguy)
MR. AMATO:
Thank you, Your Honor.
A-60
APPENDIX C
Che Supreme Court Of The
State Of Louisiana
STATE OF LOUISIANA
VS. No. 86-K - 2054
JOSEPH CATHEY
IN RE: Cathey, Joseph; Applying for Supervisory Writs of
Certiorari, Prohibition and Mandamus; to the Court of Ap-
peal, Fifth Circuit, Number 86-KA-111; Parish of Jefferson
24th Judicial Distsrict Court Div. ‘‘I’’ Number 83-1875
January 23, 1987
Denied.
HTL
JAD
PFC
WFM
JLD
JCW
LFC
Supreme Court of Louisiana
January 23, 1987
/s/ illegable
Clerk of Court
For the Court
A-61
APPENDIX D
AMENDMENT IV
Searches and seizures
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affir-
mation, and particularly describing the place to be search-
ed, and the persons or things to be seized.
AMENDMENT V
Capital crimes; double jeopardy; self-incrimination; due
process; just compensation for property
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or in-
dictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual service
in time of War or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life, liberty,
or property, without due process of law; nor shall private
property be taken for public use, without just
compensation.
AMENDMENT XIV
§ 1. Citizenship rights not to be abridged by states
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction therof, are
citizens of the United States and of the State wherein they
A-62
reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizen of the
United Staates; nor shall any State deprive any person of -
life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protec-
tion of the law.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.