State v. CaillouetState v. Caillouet
On August 13, 1985, defendant was indicted by a Lafayette Parish Grand Jury for simple kidnapping in violation of
The facts surrounding this charge will not be stated in this opinion as they have been previously reported in State v. Caillouet,
ASSIGNMENTS OF ERROR
Defendant assigns the following errors made by the trial court:
“(1) The trial court erred in that it imposed an excessive sentence upon this defendant;
(2) The trial court erred in that it did not exclude evidence of a shooting which was not part of the offense of kidnapping and which evidence, nevertheless, prejudiced the defendant by its admission.”
ASSIGNMENT OF ERROR NO. 1
Appellant urges that the sentence imposed upon him was excessive. His specific complaint is to the relativity of the sentence here and that which he received for the aggravated battery conviction arising from the same act or transaction. He claims that once a sentence has been imposed for one crime in a series of crimes based upon the same criminal act, the judge should not impose a harsher sentence in the second conviction. He also claims that those sentences should run concurrently. He bases this argument on LSA-C. Cr.P. art. 883 which states (in pertinent part):
“If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively.”
A clеar reading of this article contradicts defendant’s contention. The Louisiana Supreme Court rejected a similar argument in State v. Littleton,
“Defendant contends that the consecutive sentences imposed in this case is not in compliance with C.Cr.P. 883. This article is of no aid to defendant; it specifically excludes from its scope sentences the court expressly directs are to be served consecutivеly.”
Id. at 506.
Louisiana courts have adhered to a general rule that concurrent sentences are
Defendant’s sentence for simple kidnapping, while the maximum under
“The prison terms provided under the provisions of this Section shall run consecutively to any other penalty imposed upon conviction of any of the crimes listed in this Section.”
This enhancement statute for use of firearms during the commission of a crime evidences a legislative perception that those committing crimes with firearms pose a heightened risk to public safety. Also, the defendant had a prior misdemean- or conviction for aggravated assault with a firearm in New Orleans. The trial judge could reasonably have decided that to reduce the total sentence exposure for simple kidnapping with a firearm to five years, as was done in the aggravated battery sentence, would deprecate the seriousness of the offense and circumvent the legislative intent of discouraging the use of a firearm by failing to subject thе defendant to additional prison time than had he not used a firearm.
A trial judge’s wide discretion in sentencing a defendant is not abused when part of a sentence is concurrent with another sentence, whilе the remainder is to run consecutively with the other sentence. State v. Johnson,
ASSIGNMENT OF ERROR NO. 2
Defendant contends that testimony concerning his shooting and wounding of the victim should not have been admissible. He claims that this is “other crimes” evidence and should not have been admissible as a jury may have inferred guilt of the present offense from the stigma of the aggravated battery. Defendаnt also contends that if that evidence is admitted as part of the res gestae, then his motion to quash should have been granted, as the prohibition against double jeopardy was violated.
Evidence whiсh forms any part of the res gestae is admissible. The res ges-tae exception includes criminal acts which are an inseparable part of the continuous criminal deed and show a close сonnexity in time and location between the offense charged and the evidence of other wrongful acts sought to be introduced. State v. Haarala,
Defendant contends that if the “other crimes” evidence is allowed in as part of the res gestae, then his conviction violates the prohibition against double jeopardy. Defendant in his brief points to the case of State ex rel. Smith v. Phelps,
“Louisiana applies the ‘same evidence’ test in determining if a sеcond trial constitutes double jeopardy. This test holds that offenses are the same if the elements required to support conviction upon one of the offenses would have been sufficient to warrant conviction upon another. That is to say, where the gravaman of the second offense is essentially included within the offense for which first tried the second prosecution is barred because оf former jeopardy.”3
Id. at 450. The court further noted that the “same evidence” rule is not meant to prohibit a defendant, who goes on a crime spree violating more than one criminal statute within a short time span, from being prosecuted for more than one offense without violating the prohibition against double jeopardy. The court also found that even though evidence of the kidnapping was used in the previous trial for the municipal court violations, the state was not later barred from prosecuting the defendant on the kidnapping charge.
Simple kidnapping is defined by
Defendant’s second assignment of error lacks merit. His conviction and sentence are thus affirmed.
AFFIRMED.
DOMENGEAUX, J., concurs.
Notes
. In Smith, Justice Summers wrote the majority opinion with Justices Tate, Dixon, and Calogero dissenting.
. The abridgеd facts were that the defendant saw his estranged common-law wife in a store, he grabbed her around the neck, drew his pistol, pulled her into his car while pointing the gun at her and various other peoplе, and drove away with her in the car.
. We note that the Louisiana Supreme Court has also pointed out that the state and federal constitution require that another test be applied to determine if there is double jeopardy. Namely, whether each offense requires proof of additional facts that the other does not. That test is also met here. See State v. Coody,
.
"The intentional and forcible seizing and carrying of any person from one place to another without his consent.”
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“Battery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to smother.”
"Aggravated battery is a battery committed with a dangerous weapon."