State v. ClarkState v. Clark
Dunсan Kemp, Office of Dist. Atty., Livingston Parish, Livingston, for plaintiff.
Before COVINGTON, C.J., and SAVOIE and LeBLANC, JJ.
LeBLANC, Judge.
Alexander Clark was charged by separate bills of information with attempted first degree murder, a violation of
1. The trial court erred in accepting the verdict of guilty of public intimidation beсause there was insufficient evidence to sustain the verdict.
2. The trial court erred in accepting the verdict of guilty of aggravated battery because there was insufficient evidence to sustain the verdict.
3. The trial court erred in finding the defendant guilty of aggravated battery and public intimidation of a police officer because the same evidence
was usеd for both convictions and violated the prohibition against double jeopardy contained in the Fifth Amendment of the United States Constitution and in Article I, § 15 of the Louisiana Constitution (1974). 4. The trial court erred in failing to instruct the jury that even in the event of a lawful arrest, if a police officer uses excessive force, the person being arrested has the right to resist that force.
5. The trial court erred in imposing an excessive sentence.
Assignments of error numbers four and five were not briefed; therefore, they are considered abandoned. Uniform Rules-Courts of Appeal, Rule 2-12.4.
FACTS
On June 12, 1988, Walker Police Officer Kevin Devall was on patrol in his police unit when he observed a vehicle, driven by defendant, speeding on Highway 190. Officer Devall, using radar, clocked defendant‘s vehicle traveling 69 miles per hour in a 55 miles per hour zone. Devall pursued defendant‘s vehicle, which stopped at a red traffic signal on Highway 190 at the intersection of Burgess Avenue. Devall radioed the Town of Livingston Police to advise that he was going to make a traffic stop and relayed the license plate number and description of the automobile he was stopping. Before Devall could exit his vehicle, the traffic signal changed to green and defendant‘s vehicle turned and continued traveling. Devall turned on his unit‘s flashing lights, pursued defendant‘s vehicle and radioed the Livingston Parish Sheriff‘s Office to send a backup unit. Finally, defendant‘s vehicle stopped; the officer exited his vehicle and ordered defendant to step out of his vehicle. Defendant approached the police unit and refused to give Officer Devall his driver‘s license. A passenger in defendant‘s vehicle left that vehicle and stated that he did not want trouble and wanted to leave. Devall ordered this man to “go down the road” and to not come back. As Devall was talking to the passenger, defendant threw his driver‘s license on the hood of the police vehiclе, ran back to his automobile and sped off. Officer Devall returned to his vehicle and chased defendant. Officer Randy Dufrene, a Town of Livingston police officer, attempted to set up a roadblock with his vehicle; however, defendant attempted to hit Officer Dufrene‘s vehicle and then passed the officer. Defendant proceeded to his brother‘s rеsidence on Clark Street. Once there, defendant ran from his vehicle and started beating on the door.
Officer Devall arrived only seconds after defendant and advised him he was under arrest, to which defendant responded with obscenities. Officer Dufrene then arrived at the house, advised defendant he was under arrest, and tried to grab defendant and subdue him. Defendant fought with Officеr Dufrene. Trooper Long arrived and again told defendant he was under arrest; defendant punched Long in the face and chest two to three times. Trooper Long then attempted to use his flashlight to hit defendant‘s arms to subdue him, but defendant grabbed the flashlight and started swinging it at all of the officers. At this point, Trooper Long drew his gun and pointed it at defendant, ordering him to drop the flashlight. Long intended to shoot defendant at that point.
Defendant dropped the flashlight, grabbed Long‘s gun and shoved the barrel into Long‘s stomach. The trooper and defendant struggled for control of the gun. Trooper Long felt defendant searching for and trying to pull the trigger to discharge the gun into Long‘s stomach. Finally, after being struck by the other officers several times, defendant relеased the weapon. Defendant was handcuffed and placed in the police unit.
SUFFICIENCY OF THE EVIDENCE
By assignment of error number two, defendant contends that there was insufficient evidence to sustain the verdict for the aggravated battery conviction. Specifically, he argues that the trial court erred in accepting the responsive verdict of aggravated battery.
The standard of review for the sufficiency of the evidence is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. See
Relying on the analysis in State ex rel. Elaire v. Blackburn, 424 So.2d 246, 252 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983), defendant argues that the evidence produced at trial was not sufficient to sustain a сonviction of the greater offense of attempted first degree murder. Defendant argues that there was no intent to inflict great bodily harm on Trooper Long because he only sought “to protect himself against the bodily harm that he was receiving at the hands of the three police officers.”
Aggravated battery is a statutory responsive verdict to a chargе of attempted first degree murder.
At trial, the jury instructions included a charge regarding the responsive verdict of aggravated battery. No objection was made by defense counsel to this jury instruction. The issue is being raised for the first time in this appeal.
Defendant‘s reliance on Blackburn is misplaced; the evidence herein supports the conviction of the responsive verdict, aggravated battery. To reach this verdict, the jury had to find that defendant intentionally used force or violence upon Trooper Long and used a dangerous weapon, the trooper‘s revolver.
General criminal intent, the intent required for aggravated battery, was also present.
Also, we note that a portion of defendant‘s argument actually is one involving the weight of the evidence, not its sufficiency. He contends that there is confliсting testimony about the struggle over the gun, a factual matter, the resolution of which depends on a determination of the credibility of the witnesses. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder‘s determination of guilt. State v. Matthews, 450 So.2d 644, 647 (La. 1984).
Thus, this assignment of error lacks merit.
In our review of the record, this court has noticed, ex proprio motu, that the instant offensеs were improperly consolidated for trial.
Louisiana Constitution, Article I, Section 17, provides in pertinent part as follows:
A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before а jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons ...
See also
Herein, defendant was tried before a twelve person jury. The punishment for attemptеd first degree murder is necessarily confinement at hard labor, and trial by the twelve person jury was proper for that offense. See
We do not, however, find it necessary to reverse and set aside defendant‘s conviction and sentence for the aggravated battery. We note that the record reflects that defendant neither objected to consolidated trials on the offenses charged in separate indictments nor to the mode of trial. We find that defendant was not prejudiced by the consolidated trials. The defendant‘s acts of use of force upon Trooper Long fell within the res gestae; and evidence of those acts would have been admissible if defendant had been charged and tried only as to the attempted first degree murdеr charge. Furthermore, the facts of the case were not so complex as to confuse the jury. See former
We also note a patent sentencing error caused by the trial court‘s failure to give defendant credit for time served. See
DOUBLE JEOPARDY
By assignment of error number three, defendant contends that “the trial court erred in finding him guilty of” both aggravated battery of a police officer and public intimidation of a police officer. Specifically, he argues that the trial judge violated the prohibition against double jeopardy contained in the federal and state constitutions. See
Louisiana Code of Criminal Procedure article 596 provides that double jeopardy exists
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.
In determining whether the double jeopardy clause bars subsequent prosecutiоn, the Louisiana Supreme Court has utilized both the Blockburger2 test and the “same evidence” test, although in recent years, it principally has relied upon the “same evidence” test when evaluating double jeopardy claims. State v. Miller, 571 So.2d 603, 606 (La.1990). In Louisiana, the same evidence test depends upon the proof required to convict, not the evidence actually introduced at trial. Thus, if the evidence necessary to support the second charge would have been sufficient to support the former charge, double jeopardy prohibits the second prosecution. State v. Miller, 571 So.2d at 606.3
In Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 2087, 109 L.Ed.2d 548 (1990), the United States Supreme Court held that “the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that рrosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” In Grady, the Court established a double jeopardy analysis involving the Blockburger test as follows: to determine whether a subsequent prosecution is barred by the double jeopardy clause, a court must first apply the traditional Blockburger test. If application of that test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred. Grady v. Corbin, 110 S.Ct. at 2090.
However, a subsequent prosecution must do more than survive the Blockburger test. The additional analysis is described in Grady v. Corbin, 110 S.Ct. at 2093, as follows:
[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. This is not an “actual evidence” or “same evidence” test. The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct. As we have held, the presentation of specific evidence in one trial does not forever prevent the government from introducing that same evidence in a subsequent proceeding. See, Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). On the other hand, a State cannot avoid the dictates of the Double Jeopardy Clause merely by altering
in successive prosecutions the evidence offered to prove the same conduct. (Footnotes omitted)
In the instant case, when the Blockburger test is applied it does not bar a subsequent prosecution for public intimidation. The offense of aggravated battery is the intentional use of force or violence upon the person of another by means of a dangerous weapon.
We must now continue the analysis by inquiring into the conduct the state will prove at a subsequent prosecution for public intimidation. We have reviewed the record and neither the bill of information, the bill of particulars, nor the answers to discovery reveal the specific conduct the state will argue constituted the public intimidation. However, if the state chooses to prosecute defendant for public intimidation based on defendant‘s conduct in shoving the revolver into Trooper Long‘s stomach, that prosecution would be barred; defendant has already been prosecuted for that conduct. Grady v. Corbin, supra. However, the transcript before us reveals other conduct by defendant (e.g. defendant fighting with Trooper Long and striking the trooper with his fists) for which defendant may be prosecuted for the crime of public intimidation. Thus, applying the additional Grady analysis, we do not find that double jeopardy bars a subsequent prosecution for public intimidation if based on conduct by defendant other than that for which defendant has already been prosecuted.
CONVICTION FOR AGGRAVATED BATTERY AFFIRMED; SENTENCE FOR AGGRAVATED BATTERY AMENDED; CONVICTION AND SENTENCE FOR PUBLIC INTIMIDATION REVERSED AND VACATED; CASE REMANDED WITH ORDER.
NOTES
Notes
Notes
Terminology in the double jeopardy area has been confused at best. Commentators and judges alike have referred to the Blockburger test as a “same evidence” test. See e.g., Note, The Double Jeopardy Clause as a Bar to Reintroducing Evidence, 89 Yale L.J. 962, 965 (1980); Ashe [v. Swenson], 397 U.S. [436], at 448, 90 S.Ct. [1189], at 1196, [25 L.Ed.2d 469] [(1970)] (BRENNAN, J., concurring). This is a misnomer. The Blockburger test has nothing to do with the evidence presented at trial. It is concerned solely with the statutory elements of the offenses charged. A true “same evidence” or “actual evidence” test would prevent the government from introducing in a subsequent prosecution any evidence that was introduced in a preceding prosecution. It is in this sense that we disсuss, and do not adopt, a “same evidence” or “actual evidence” test.
Louisiana‘s same evidence test, which depends upon proof required to convict rather than evidence introduced at trial, would appear to comport with the initial (Blockburger) analysis still required by Grady. However Grady now requires an additional analysis of the conduct to be proven by the state, which broadens the traditional double jeopardy analysis used in Louisiana courts.