State v. BergeronState v. Bergeron
ON REHEARING
DIXON, Justice.
Aubrey Bergeron and Frederick Stanley were charged in the same information with simple burglary in violаtion of
Between 6:00 p.m. April 5 and 2:30 a.m. April 6, 1975, a residence on Banks Street in New Orleans was burglarized. Just after midnight of that same evening, police officers stopped a vehicle in New Orleans for a traffic violation. The driver of that vehiсle was Stanley, and the passenger was Bergeron. Stanley was issued traffic tickets for running a stop sign and having an obstructed rear windshield. (The trunk lid was open to accommodate a large console television). The car was impounded because it was not registered in either Bergerоn or Stanley‘s name, but neither Bergeron nor Stanley was arrested. However, when the impounded vehicle was inventoried, most of the items taken in the burglary on Banks Street were found, and the defendants were subsequently arrested and charged with simple burglary.
On rehearing, the defense contends that the рresumption that a defendant found in unexplained possession of property recently stolen in a burglary is the burglar was unconstitutionally applied at defendant‘s trial to convict him of simple burglary without evidence on the essential elements of the crime. In effect, the defense argues that although the state proved that there was a burglary and that Bergeron was a passenger in a vehicle where stolen goods were found, there was no proof that Bergeron made an unauthorized entry into the Banks Street dwelling with the intent to commit a felony or any theft therein.
At the time оf defendant‘s trial and before our recent decision in State v. Searle, 339 So.2d 1194 (La.1976) (on rehearing), this court had permitted the extension of the statutory presumption of
“It is now clear that the due process requirement of the federal constitution obliges the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and that, accordingly, a state may not shift the burden of ultimate persuasion of an essential element of the crime charged to the defendant in a criminal case. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).”
See also, State v. Wingerter, 339 So.2d 1 (La.1976).1 We have applied Searle and Wingerter to reverse convictions when this judicially extended presumption was used in lieu of an essential element of the crime.2 See State v. McGhee, 350 So.2d 370 (La.1977); State v. Montoya, 340 So.2d 557 (La.1976).
In the instant case, in its closing argument, the state communicated this presumption to the trier of fact:
“. . . There‘s no doubt that a burglary had been committed. Now, the key question in this case is did these two defendants do it? That‘s the key question. And we have shown to you, beyond a reasonable doubt, that indeed they did do it.
Let‘s go through the evidence on that key question. You remember that when Mr. Robinson questioned you here about your qualifications to be a juror, he said there‘s a presumption in law that anyone in the unexplained possession of recently stolen goods is considered to be the burglar. That‘s what these two defendants were. . . . these two defendants were stopped . . . driving along in a car which had all of those stolen goods which you saw in this picture. In other words, they werе in the unexplained possession of recently stolen property. That‘s a presumption in law which you all took an oath that you would uphold that presumption today. . . . The stuff has been taken from a home. The stuff is found in the possession of the two defendants. You remember that the officers were asked: Was there any explanation given as to how they got those goods? No explanation was given. Throughout this trial, no explanation has been given as to how these two defendants
got those goods, and you know why? It‘s as simple as common sense. It‘s as simple as that presumption. Bеcause if you‘re in the possession of recently stolen goods, you‘re the burglar, and a burglary has been committed, and there can be no explanation of how they came into those goods except for the fact that they broke into that home at 2654 Banks Street; . . .”
The trial judge alsо charged the jurors, in effect, that if the state proved beyond a reasonable doubt that the defendants were in the unexplained possession of recently burglarized property, the jury must presume that the defendants committed the burglary.
Although the record indicates that the state proved that a burglary occurred at the Banks Street dwelling, that Bergeron and Stanley were found in a vehicle with the recently stolen items from that burglary, and that no explanation was given for this possession, the record does not contain any evidence that Bergeron made the unauthorized entry into the dwelling with the intent to commit a theft or felony, nor that he stole the property. Instead, the state relied on the presumption to convict Bergeron of simple burglary, without proving all the essential elements of the crime.
Citing the original hearing of Searle, the state argues that during the instant trial this presumption was valid and aрproved by this court. The instant case was tried on April 6, 1976, before our Searle decision was rendered on rehearing on October 6, 1976.
In State v. Searle we decided, as we had indicated in State v. Kaufman, 278 So.2d 86 (La.1973), that the broadening of the presumption of theft into a presumption of guilt in a trial for a greater crime, which includes the theft, violates due process by relieving the state of the necessity for producing any evidencе of essential elements of the offense (to say nothing of the damage to the presumption of innocence and the burden of ultimate persuasion). In State v. Spears, 363 So.2d 479 (La.1978), we considered the rule of the Searle case so basically important to constitutional requirements for a just trial that it must at least be applied to cases not final when Searle was decided. (Spears had been tried on October 2, 1974).
The state argues, further, that the defense in the present case made no contemporaneous objections during the voir dire examination, closing arguments, or the trial court‘s charges to the jury and, thus, the defense contention of total lack of evidence on all essential elements of the crime charged was waived because it was never properly presented to the trial court. Although defense did not contemporaneously object, a motion for a new trial was filed, and the trial court was afforded the opportunity to correct the defеnse complaint of no evidence by granting a new trial. In State v. Cobbs, 350 So.2d 168, 174 (La.1977), similar to the instant case, the defendant raised the same Searle issue by alleging that the state failed to offer evidence of every essential element of the crime of simple burglary and that the only evidence used to find defendant guilty of burglаry was this presumption. In response, this court noted that only when the defendant has moved for a judgment of acquittal,
In the instant case, Bergeron‘s co-defendant, Stanley, filed a written motion for a new trial, styled State of Louisiana v. Frederick Stanley et al. The court minutes do not clearly reflect whether Bergeron wаs
“If an objection has been made when more than one defendant is on trial, it shall be presumed, unless thе contrary appears, that the objection has been made by all the defendants.”
See State v. Jackson, 358 So.2d 1263, 1265 (La.1978); State v. Trass, 347 So.2d 1156, 1158 (La.1977). By analogy, the provision of
Finally, the state objects that the motion for a new trial does not specifically allege that there was no evidence of an essential element of the crime charged and consequently the issue is not before us.4 Although the exact words were not used, the trial court could not have misconstrued what the defense argument was in its motion for a new trial; the same contentions had been argued by the defense in its closing arguments.5 We find the issue was preserved by the motion for a new trial and is properly before us.6
Finding that the state failed to present evidence on essential elements of the crime charged, we conclude that the defendant‘s conviction must be reversed. Moreover, the United States Supreme Court has held that the double jeopardy clause of thе Fifth Amendment (which is applicable through the Fourteenth Amendment to state criminal trials, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)) precludes a second trial once the reviewing court has found a total absence of evidence as to an essential element of the crime charged. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); see also, State v. Thompson, 366 So.2d 1291 (La.1978) and State v. Liggett, 363 So.2d 1184 (La.1978). Accordingly, the defendant cannot be tried again for this offense.
For these reasons, defendant‘s conviction and sentence are reversed and set aside and he is ordered discharged.