State v. NettletonState v. Nettleton
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., for plaintiff-respondent.
WILLIAM A. CULPEPPER, Justice Ad Hoc*
The district attorney of Terrebone Parish received complaints that shrimp fishermen were being harassed while trying to operate their boats in the area of Bayou Barre. Accompanied by members of the State Police Water Patrol, an agent of the Louisiana Wildlife and Fisheries Commission, and an officer of the State Police Narcotics Division, the district attorney conducted a surveillance on the night of June 10, 1976 from a shrimp boat belonging to Mr. Aaron Pellegrin, one of the complainants. Based on the occurrenсes of that night, the State of Louisiana, through the district attorney for the Thirty-second Judicial District, Terrebone Parish, Louisiana, filed on July 2, 1976 twelve Bills of Information against three brothers, Kerry, Larry and Terry Nettleton, charging them with the following crimes:
| Defendant | Crime | Statute Allegedly Violated | Docket Number |
|---|---|---|---|
| Kerry Nettleton | Reckless operation of a motorboat | 63,398 | |
| Kerry Nettleton | Operating a motorboat without life jackets | 68,399 | |
| Kerry Nettleton | Operating a motorboat without a fire extinguisher | 68,400 | |
| Kerry Nettleton | Operating a motorboat without boat registration | 68,401 | |
| Larry Nettleton | Reckless operation of a motorboat | 68,402 | |
| Larry Nettleton | Reckless operation of a motorboat | 68,403 | |
| Larry Nettleton | Operating a motorboat without running lights | 68,404 | |
| Larry Nettleton | Operating a motorboat without life jackets | 68,405 | |
| Terry Nettleton | Aggravated assault with a motorboat | 68,406 | |
| Terry Nettleton | Operating a motorboat without running lights | 68,407 | |
| Terry Nettleton | Reckless operation of a motorboat | 68,408 | |
| Terry Nettleton | Reckless operation of a motorboat | 68,409 |
The defendants moved to quash all twelve Bills of Information on the grounds that the Federal Boat Safety Act,
The charges against Larry and Terry proceeded to trial on April 5, 1978 before a jury of six members. Terry and Larry were each convicted of violating the charge of operating a motorboat without running lights,
All three defendants applied for writs of certiorari and review. Terry and Larry, the defendants who were tried and convicted on one charge each, rely on Assignments of Error 1 through 4 for reversal of their convictions and sentences. Kerry Nettleton, whose trial was severed over his objection, relies on Assignment of Error # 1, and he also argues in Assignment of Error # 5 that because the maximum cumulated fines for the four charges against him exceed $500, he is entitled to trial by jury of six.
ASSIGNMENT OF ERROR NO. 1
In Assignment of Error No. 1, the defendants argue that the trial court should have granted the motion to quash the Bills of Information because the Federal Boat Safety Act, particularly
“Sec. 1459. Federal preemption in issuance of standards
“Unless permitted by the Secretary under sеction 1458 of this title, no State or political subdivision thereof may establish, continue in effect, or enforce any provision of law or regulation which establishes any boat or associated equipment performance or other safety standard, or which imposes any requirement for associated equipment, except, unless disapproved by the Secretary, the carrying or using of marine safety articles to meet uniquely hazardous conditions or circumstances within the State, which is not identical to a Federal Regulation issued under section 1454 of this title. Pub.L. 92-75, Sec. 10, Aug. 10, 1971, 85 Stat. 217.”
Section 1454 of the Federal Statute provides that the secretary may issue regulations establishing minimum safety standards for boats, equipment on boats, classes of boats, navigational lights, etc. The regulations contained in the Western Rivers Rules of the Road,
“Sec. 321. Lights of motor boats (Rule 12)
“Motorboats, when not engaged in towing, shall be lighted as provided by the Motorboat Act of April 25, 1940, as amended.”
The Federal Motorboat Act of 1940,
Defendants’ initial argument that the Federal Boat Safеty Act pre-empts the field of boating safety on the navigable waters of the State of Louisiana has no merit. The Federal Statute,
In а supplemental brief filed after oral argument in this Court, defendants concede that the regulations provided in the Federal Motorboat Act of 1940,
This argument has no merit. The purpose of the federal pre-emption provided in
For the reasons stated, we find no merit in Assignment of Error No. 1.
ASSIGNMENT OF ERROR NO. 2
In Assignment of Error No. 2, the defendants Larry and Terry argue that the trial judge erred in conferring with a juror, first without counsel, then with counsel, outside the defendants’ presence, concerning the juror‘s ability to render a verdict.
The record shows that after the first day of the trial, a juror, Hank Verdin, went to the office of the trial judge and stated that he could not serve as a juror because he was a commercial fisherman, the same as the defendants, and he could not decide the case. The district judge immediately summoned counsel for the State and for the defense to his chambers and explained the problem. Counsel were requested to research the law and advise the Court the next day.
When the trial resumed the next morning, defense counsel objected to the conference in chambers between the juror and the judge and to the conference between the judge and counsel on the grounds that defendants had not been present at either conference. The judge noted that defense counsel had not requested that defendants be present on the previous day and so found that no prejudiсe had occurred. The juror was then called into court and testified as to what had happened the afternoon before. The judge then proposed three alternatives: (1) Keeping the juror, (2) dismissing him and using an alternate, and (3) declaring a mistrial. The judge and the prosecutor initially were in favor of calling an alternate, but defense counsel requested that the juror not be disqualified without legal cause. After an extended discussion, during which the State at one time moved for a mistrial and was opposed by defense counsel, the juror was allowed to remain and the trial continued.
In brief, defense counsel relies on the case of State v. White, 244 La. 585, 153 So.2d 401 (La.1963), in which a juror, suspecting that he may be disqualified after five days of trial, asked to talk to the trial
This case is distinguished from White. In White, the judge excused without legal cause a juror who had already been selected. In the instant case, the judge acquiesced in defense counsel‘s request to keep the disputed juror in accordance with White. We find no merit in Assignment of Error No. 2.
ASSIGNMENT OF ERROR NO. 3
In Assignment of Error No. 3, Larry and Terry argue the district judge erred in overruling the defendants’ objection that the State had failed to comply with Article 766 of the Code of Criminal Procedure by merely paraphrasing the Bills of Information, when that article requires that the opening statement of the State shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the State expects to prove the charge.
La.Code of Criminal Procedure, Article 766 states:
“Art. 766. Opening statement by state; scope
“The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge. Source: New; cf. former R.S. 15:333.”
It is well settled that the scope of the opening statement is left to the sound discretion of the trial judge. State v. Kinchen, 342 So.2d 174 (La.1977); State v. Bolen, 338 So.2d 97 (La.1976); State v. Schoonover, 252 La. 311, 211 So.2d 273 (La.1968). Moreovеr, the State need not give in minute detail all evidence by which it intends to prove its case. State v. Sneed, 316 So.2d 372 (La.1975); State v. Roquemore, 292 So.2d 204 (La.1974); State v. Himel, 260 La. 949, 257 So.2d 670 (La.1972). Furthermore, this Court has rejected a similar attack where defendant maintained that the State failed to assert in its opening statement that an essential element of the crime charged existed. Kinchen, supra. Finally, while there does appear to be somе support for defendants’ contention, State v. Ducre, 173 La. 438, 137 So. 745 (La.1931), a review of the State‘s opening statement does not appear to support the position that the State only paraphrased the charges against defendant. The State elaborated upon the burden of proof it needed to meet and the fact that no juror would be allowed to consult a transcript of testimony during its deliberations. The prosecutor further stated that he would put witnesses on the stand that were present when the alleged offenses occurred and gave their names and occupations.
We find no merit in Assignment of Error No. 3.
ASSIGNMENT OF ERROR NO. 4
In Assignment of Error No. 4, the defendants Larry and Terry argue the district judge erred in taxing them with costs of court of all eight charges on which they were tried, although they were convicted of only two charges and acquitted on six charges.
The minutes of the district court for April 13, 1978 show that in Case No. 68404, State of Louisiana v. Larry Nettleton, and Case No. 68407, State of Louisiana v. Terry Nettleton, which were the cases charging operation of a motorboat without running lights, each of the accused was sentenced as follows:
“Whereupon, after having had their sаy, each accused was sentenced to pay a fine
of $25 and costs of court (each to pay one-half of the costs) and, in default of which, they are to serve a period of thirty (30) days in the parish jail.”
La.Code of Criminal Procedure Article 887 provides in pertinent part:
“A defendant who is convicted of an offense shall be liаble for all costs of the prosecution, whether or not costs are assessed by the court. A defendant shall not be liable for costs in the event of an acquittal or a dismissal of the prosecution.”
We cannot agree with cоunsel for defendants that the above quoted sentence in the two cases charging operating a motorboat without running lights taxed the defendants with the costs of court of those cases in which they were acquitted. We understand the sentence to mean that the defendants are taxed with costs only in the two cases in which they were convicted, and that each is to pay one-half of the combined costs. We find it improper to combine the costs of the two cases and tax each defendant with one-half. The costs may not be the same in both cases. Each defendant should be taxed only with the costs in the case in which he was convicted. We will amend the sentence accordingly.
The record before us does not show what costs of prosecution have been or will be assessed, or the method of computation. If and when the clerk of court proceeds under
ASSIGNMENT OF ERROR NO. 5
Assignment of Error No. 5 concerns only the defendant, Kerry Nettleton, whose trial was severed and postponed to a later date before a judge alone. Kerry argues the district judge erred in denying him a jury trial on the four charges listed above, since the aggregate fines which could be imposed on conviction of these four charges exceeds $500, even though the aggregate imprisonment does not exceed six months. The aggregate fines could be $575.
“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, five of whom must concur to render a verdict.”
Although the constitutional provision does not apply to fines, the legislature adopted La.Code of Criminal Procedure, Art. 779 which provides:
“Art. 779. Trial of misdemeanors
“A. A defendant charged with a misdemeanor in which the punishment may be a fine in excess of five hundred dollars or imprisonment for more than six months shall be tried by a jury of six jurors, five of whom must concur to render a verdict.
“B. The defendant charged with any other misdemeanor shall be tried by the court without a jury.
“Amended by Acts 1968, No. 635, Sec. 1; Acts 1974, Ex.Sess. No. 23, Sec. 1, eff. Jan. 1, 1975; Acts 1975, 1st Ex.Sess. No. 16, Sec. 1, eff. Jan. 28, 1975.”
In State v. McCarroll, 337 So.2d 475 (La.1976), this Court reversed prior jurisprudence and held that where two or more charges are joined for trial, the right to a jury must be determined by the aggregate punishment which may be imposed in that case. McCarroll involved aggregate imprisonment exceeding six months, rather than fines exceeding $500. However, the rule stated in McCarroll is controlling here.
We conclude the trial judge erred in denying Kerry Nettleton a trial by jury of six.
For the reasons assigned, the convictions and sentences of Larry Nettleton and Terry Nettleton are affirmed, except that each is taxed only with the costs of prosecution in the cаse in which he was convicted. The order of the trial judge denying Kerry Nettleton a jury trial is reversed and set
MARCUS, J., concurs in part and dissents in part and assigns reasons.
MARCUS, Justice (concurring in part and dissenting in part).
I concur with the affirmances of the convictions and sentences of Larry and Terry Nettleton. However, I dissent from the setting aside of the order of the trial judge denying Kerry Nettleton a jury trial. The state has the right to institute criminal prosecutions against those who have violated a criminаl law.