State v. SchwanderState v. Schwander
The defendants Peter Schwander and Mrs. Deborah Venezia were convicted of aggravated burglary,
I.
The most serious issue is presented by Assignment 2. By this, the co-defendant Mrs. Venezia contends that the trial court erroneously denied her motion for acquittal at the close of the state‘s case.
The uncontradicted testimony of the prosecuting witness shows:
He knew Mrs. Venezia and had been intimate with her in the past. She had visited the witness‘s apartment socially on several occasions.
On the morning of the burglary, she asked the witness if she could use his telephone. He conducted her to his bedroom. While she was using the telephone, she asked him for an area code for a long-distance city.
The witness had left the telephone book in the living room. When he went into the living room, he discovered the defendant Schwander had entered the apartment and had removed the victim‘s guitar from its case, i. e., was in the process of committing a burglary. Schwander following the victim back into the bedroom and commenced beating him.
Pertinently to the present facts,
All of the essential elements of the offense are proved by the conduct of the defendant Schwander. However, with regard to Mrs. Venezia: (1) she entered the victim‘s dwelling with his consent and (2), so far as the record shows, was merely a spectator, not participating in any theft or in any battery upon the victim.
The state‘s theory, however, is that she participated in the crime as a principal, by securing entry to the apartment with the intention of facilitating the subsequent unauthorized entry into it by her companion, Schwander. “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”
For appellate purposes, the denial of a motion for acquittal does not raise a reviewable question of law unless there is a total lack of evidence to prove the crime or an essential element of it. State v. Douglas, 278 So.2d 485 (La.1973).
In the present instance, however, the state‘s uncontradicted evidence negates that Mrs. Venezia aided or abetted Schwander in the commission of the burglary or in any other way participated with him in it as a principal.
In addition to testifying to admitting Mrs. Venezia voluntarily to use the telephone, the victim positively testified that:
(1) When Schwander walked into the bedroom, she exclaimed to him, “I told you to stay in the car.” Tr. 30, 33-34.
(2) When the victim left the bedroom to enter the living room where the burglary was taking place, Mrs. Venezia was unconcerned and made no attempt to stop him, although fully realizing he was going into the living room. Tr. 28-29, 34.
(3) He, the victim, did not observe Mrs. Venezia do any act, nor did she participate in his beating. Tr. 24, 33-34.
The state cannot point to any evidence at the trial by which the trial jury could reasonably infer that she aided and abetted in
A trial jury‘s inference that an accused aided and abetted in a crime cannot be “mere speculation based upon guilt by association.” State v. Williams, 310 So.2d 513, 515 (La.1975). The issue of whether circumstantial evidence excludes every reasonable hypothesis of innocence, as required by
Applying these principles, the uncontradicted proof submitted to the jury presents no evidence that Mrs. Venezia aided and abetted Schwander in the commission of the aggravated burglary; it, in fact, negates any inference to such effect. Mrs. Venezia‘s conviction and sentence must be set aside, and her case remanded for a judgment of acquittal in accordance with this opinion.
2.
The other assignment does not present a serious issue:
Assignment 1 concerns the denial of a motion for a mistrial. The motion is made with respect to a response by a state witness, which allegedly referred to another crime committed by the defendant Schwander.
The unsolicited response was ambiguous in nature. It did not so unmistakably refer to prior criminal conduct as to deprive the accused of a fair trial. The trial court‘s admonition to the jury to disregard the statement cured what little prejudice, if any, resulted from the response. See:
Decree
For the reasons assigned, we affirm the conviction and sentence with regard to the defendant Schwander; but we reverse the conviction and sentence as to the defendant Venezia, and remand her case for a judgment of acquittal as required by
CONVICTION AFFIRMED AS TO ONE DEFENDANT; REVERSED AS TO THE OTHER, AND REMANDED AS TO HER.
SANDERS, C. J., concurs in affirmance of Schwander conviction but dissents from reversal of the Venezia conviction.
MARCUS, J., concurs in part and dissents in part and assigns reasons.
MARCUS, Justice (concurring in part and dissenting in part).
I concur in the affirmance of the conviction and sentence of defendant Schwander; I dissent from the reversal of the conviction and sentence of defendant Venezia. In my view, there was some evidence from which the jury could reasonably infer that Mrs. Venezia aided and abetted in the burglary.