State v. MuseState v. Muse
Lionel Muse and Raymond Williams were jointly charged by bill of information with the crime of simple burglary. Subsequently, the State amended the bill of information to charge defendants in two separate counts with the crime of theft of property valued in excess of $500 in violation of
The facts adduced at trial by the State are: Upon returning home after work, Mr. Farritor of Baton Rouge found that his house had been burglarized during the day. Numerous items were missing from his house including a foreign camera, a Timex watch, stereo speakers, turntable and receiver. Police who were called to the home discovered some of the missing stereo equipment hidden under a bush in an alleyway behind Mr. Farritor‘s home. The officers, believing that the burglars would return for the stolen property, put the place under observation.
After dark on the same date, Muse drove a pickup truck down the private alley, turned off the truck‘s headlights about one hundred yards from the stolen property, and drove until he reached the stolen property. Muse then stopped the truck, turned on the headlights and he and Williams got out of the truck and started to take the stolen property from under the bushes. At this point, the police officers appeared and arrested the defendants. The truck was registered in Green‘s name, and when the police went to Green‘s house they found the missing camera that had been taken from Mr. Farritor‘s home that same day. Green testified at the trial that Muse gave him the camera as payment for borrowing the truck.
Assignments of Error Nos. 1, 2 and 3
Defendant consolidated his arguments on specifications of error numbers 1, 2 and 3 because they are closely related and involve the important question of the constitutionality of
Defendant contends in Assignments of Error Nos. 1 and 2 that the trial court erred in applying
“The defendant is `presumed innocent until proven guilty’ of every essential element of the crime charged,
La.Const. of 1974, Art. I, § 16 , U.S.Const. Therefore, the statutory presumption created byR.S. 15:432 that `the person in the unexplained possession of property recently stolen is the thief is unconstitutional, without effect, and cannot relieve the state of its burden of proving beyond a reasonable doubt each and every essential element of the crime charged; rationale of State v. Searle, 339 So.2d 1194 (La. 1976), and authorities cited therein.”
Defendant argues that
In State v. Searle, 339 So.2d 1194 (La.1976), this court questioned the continuing validity of
Most recently, in State v. Coleman, 358 So.2d 289, 292 (La.1978), this court stated that it has previously found no constitutional defect when the effect of the
In the instant case, during a bench trial, the judge refused to charge himself that the presumption created by
“. . . Now, that presumption to my mind, does not mean that the State must not present a case which would convince the trier of fact beyond a reasonable doubt according to the accused his presumption of innocence. What it does mean to me though is that in its presentment the State must in affect (sic) show the trier of facts that the circumstances under which the custody or possession of the particular item is placed in the hands of the party of the accused, is such that he could not have obtained it except by having been involved in a theft, a taking without the consent, leaving to the accused, if he wishes, to come in and explain,. . . and I don‘t think that flies into the teeth of the presumption of innocence. . . .”
The judge stated that he saw nothing unreasonable about drawing an “inference” from the disappearance of the camera from the burglarized home and Green‘s loaning the truck to Muse in return for the camera.
The trial judge recited the essential elements of the crime of theft and said that he saw “some evidence as to each essential ingredient of the offense charged.” In overruling the defense counsel‘s motion for acquittal the trial judge stressed the evidence upon which he was making his ruling:
“. . . Intentional means as distinguished from accidental and I think the circumstances under which the receiver and the turntable were stashed there circumstances under how they [stolen property] were approached and who was driving the vehicle [Muse] and who obtained the vehicle [Muse] and who turned the another piece of property [camera] over to Mr. Green [Muse], which came out of the same house [as the other stolen property] which was out there in the alleyway, the other property your motion‘s overruled.”
The inference of
Assignment of Error No. 4
Defendant contends that
“A. An indictment for theft may also contain a count for receiving stolen things, and the defendant may be convicted of either offense. Where two or more persons are jointly indicted for these offenses, any or all of the persons indicted may be found guilty of either of the offenses charged. The district attorney shall not be required to elect between the two offenses charged.”
The Official Revision Comment to
“(a) This article, following Art. 246 of the 1928 Code of Criminal Procedure, provides for a situation where the state is frequently in justifiable doubt as to which crime will be established by the evidence adduced at the trial. A receiver of stolen things (
R.S. 14:69 ) will be guilty of theft (R.S. 14:67 ), rather than receiving, if it develops that he procured or in any way participated in the stealing of the goods. This article authorizes the charging of these distinct crimes in separate counts. It is for the jury to determine which charge is supported by the evidence; therefore, the article expressly states that the prosecuting officer shall not be required to elect between the two offenses charged.”
The Fifth Amendment provisions prohibiting double jeopardy were made applicable to the states in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Further, the
Recently, in State v. Williams, 359 So.2d 115 (La.1978), the very issue as in the instant case was addressed and after reasoning as above, we stated:
“A reading of Article 482 in conjunction with the criteria set forth by the United States Supreme Court in Pearce readily demonstrates that the article does not violate any of the interests sought to be protected by the Fifth Amendment. Under the article, an accused may not be subjected to multiple prosecutions for the
same offense, whether upon conviction or acquittal. In fact, the effect of the article is that there is to be a single prosecution resulting in an acquittal or a single conviction for theft or receiving stolen goods. Further, . . . the statute does not put an accused in danger of receiving multiple punishments for the same offense; the article is couched expressly in the alternative, and provides that the defendant may be found guilty of either offense not both offenses.” 359 So.2d at 117.
This Assignment of Error No. 4 is without merit.
Assignments of Error Nos. 5, 6 and 7
Defendant contends that trial court erred in allowing the prosecution to impeach, threaten, intimidate and cross-examine its own witness, in failing to grant a mistrial despite prejudicial misconduct of the prosecutor, and in refusing to have all the proceedings in open court recorded and allowing certain proceedings to be conducted in open court outside the presence of the trial judge.
Assignments of Error Nos. 5, 6 and 7 resulted from the testimony of Mr. Green, State witness, who loaned his truck to Muse in exchange for the stolen camera. On direct examination, Mr. Green testified that Muse gave him the camera in payment for the use of Green‘s truck, that he had the camera only a short time before the police took it from him but that he could not remember when Muse gave him the camera. To refresh his memory the prosecutor asked for his prior sworn testimony at the preliminary examination hearing where Green had testified that he was given the camera by Muse before Muse took the truck. The defense lawyer objected that the prosecutor was cross-examining or impeaching his own witness but the trial judge called a recess so that the witness could refresh his memory. After recess, the defense lawyer objected again and assigned error because the exchange between prosecution and Mr. Green was not transcribed and because the judge was not present. Calling of a recess is within the discretion of the trial judge, State v. Brown, 322 So.2d 211, 216 (La. 1975), and during the recess trial is not going on and the judge need not be present during recess. Further, in the instant case, a bench trial, the judge, as trier of fact, should refrain from hearing exchanges that take place outside the trial record between attorney and his witness.
Defendant also contends that the State impeached its own witness, Mr. Green. The trial judge called the recess to allow the witness to refresh his memory as to his previous testimony under oath at the preliminary examination. Before recess, the State did not impermissibly impeach its own witness but simply asked Mr. Green to refresh his memory which it has a right to do pursuant to
“No one can impeach his own witness, unless he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements.”
In State v. Spotville, 308 So.2d 763 (La. 1975), the State witness signed a statement asserting that he saw the defendant enter the rape victim‘s home, but at trial the witness denied having seen anyone enter the victim‘s home. This court found no error in permitting the prosecutor to attempt to impeach the credibility of the witness. The court reasoned that the prosecutor justifiably believed that the witness would testify in accordance with the earlier signed statement. In the instant case, the
Finally, the defendant contends that the mistrial should have been called because of the prosecutor‘s conduct during recess. Defendant contends that the prosecutor threatened Mr. Green “that if he didn‘t refresh his memory in accordance with that preliminary hearing transcript that he was going to be charged with perjury.” Defendant contends that the prosecutor threatened and intimidated Mr. Green. The prosecutor stated at the trial, “I told him that if he testified substantially contradictory to what he had on a former occasion, that under my sworn duty, I was obliged that he would be charged by me with perjury, which I believe the law says is perjury. That‘s my position. I wanted him to understand me. I wasn‘t threatening him. I was telling him.” The State, in its appellate brief, argues that the comment was not made to influence the finder of fact because it was made during recess.
“It shall constitute perjury whenever any person, having taken an oath required by law, or made an equivalent affirmation, swears or affirms any fact or state of facts material to the issue or question in controversy; and thereafter in the same or other proceedings, where such matter is material to the issue or question in controversy, swears or affirms in a manner materially contradictory of or inconsistent with his former sworn or affirmed statement. It shall not be necessary for the prosecution, in such case, to show which of the contradictory or inconsistent statements was false; but it shall be an affirmative defense that at the time he made them, the accused honestly believed both statements to be true.
This article shall only be applicable in cases where at least one of the contradictory or inconsistent statements was made in, or for use in, a judicial proceeding or a proceeding before a board or official wherein such board or official is authorized to take testimony.”
In Spotville, supra, at 766, after the trial court ruled that the State could attempt to impeach its own witness, the defendant contended that the State was permitted to “badger” the State witness by reading to him the perjury statute in the presence of the jury rather than outside their presence. This court noted that the “preferable procedure” would be to read the perjury statute to the witness out of the presence of the jury. The court further noted in Spotville that the reading of the statute in the presence of the jury created no prejudice because even assuming that such tactics “badgered” the witness or implied to the jury that the witness should not be believed, the State had already begun impeaching the witness by prior inconsistent statements, and the possible discrediting of the witness by reading the perjury statute added nothing to what the State had already done by leading questions relative to a prior inconsistent statement.
Further, in State v. Selmon, 343 So.2d 720 (La.1977), during cross-examination of a defense witness the State inquired whether the witness knew what perjury was and when he responded in the negative the prosecutor briefly explained the crime, told the witness the penalties for perjury and also mentioned that due to the witness’ past record the penalties would be enhanced if he was convicted of perjury. The defendant counsel strenuously objected on the basis that the prosecutor was intimidating the witness. This court reasoned that the prosecutor did not dwell on the subject of perjury but only informed the witness of the importance of telling the truth. In addition, in Selmon noting that the trial was not a jury trial, and that the judge found that the witness was in fact not intimidated the court found no reversible error.
In the instant case, the possibility of prejudice to the defendant was not as great as in Spotville or in Selmon. The prosecutor‘s suggestion of perjury occurred outside the presence of the trier of fact. Also, the trial record does not indicate that Mr. Green was intimidated by the threat of a perjury charge “if he didn‘t refresh his memory in accordance with that preliminary hearing
These Assignments of Error Nos. 5, 6 and 7 are without merit.
Accordingly, the conviction and sentence are affirmed.
CALOGERO, J., concurs and assigns reasons.
CALOGERO, Justice, concurring.
I concur in the majority‘s determination that