State v. SpearsState v. Spears
- Reporters:
- ,
- Before:
- Brown, Williams, Drew
On Remand
WILLIAMS, J.
The defendant, Jack S. Spears, was convicted of misapplication of construction contract payments, a violation of
On appeal, we reversed the defendant‘s conviction and sentence and entered a judgment of acquittal. The supreme court reversed our ruling and remanded this matter for our consideration of the defendant‘s remaining assignments of error. For the reasons that follow, we affirm the defendant‘s conviction and sentence.
FACTS
Richard Joe Kirkham, Jr. and Karen Walker Kirkham (“the Kirkhams“) were engaged in the business of raising chickens in Choudrant, Louisiana. In December 1999, the Kirkhams entered into a contract with the defendant, who was doing business as Spears Construction Company, Inc., to build two chicken houses for a price of $196,000. The Kirkhams obtained a mortgage to finance the construction. The contract specified that payment would be made in intermittent draws, contingent upon the completion of particular stages of construction.
The Kirkhams began to receive material and labor lien notices from suppliers and workers on the project. On May 9, 2000, the Kirkhams filed a complaint with the Lincoln Parish Sheriff‘s Department, reporting that the defendant had misappropriated funds under the construction contract.
The defendant was arrested and charged by bill of information with misapplication of contract funds over $1,000. The bill of information was later amended to charge the defendant with misapplication of construction contract funds in an amount in excess of $10,000.
A jury found the defendant guilty as charged. The trial court denied the defendant‘s motion for post-verdict judgment of acquittal, motion in arrest of judgment and motion for a new trial. Noting that the defendant had two prior felony convictions, both involving crimes of economic gain, the trial court sentenced the defendant to serve a prison term of four years at hard labor. Additionally, he was ordered to pay $103,804.22 in restitution for misapplied payments, a $500 fine and all costs of the proceedings. The court denied the defendant‘s oral motion to reconsider sentence.
The defendant appealed. Concluding that the evidence was insufficient to support a conviction, we reversed the defendant‘s conviction and sentence and entered a judgment of acquittal. State v. Spears, 39,302 (La.App. 2d Cir.3/17/05), 896 So.2d 1280. The Louisiana Supreme Court granted the state‘s application for writ of certiorari, reversed our ruling and remanded this matter “for consideration of the defendant‘s remaining assignments of error pretermitted on original appeal.” State v. Spears, 2005-0964 (La.4/4/06), 929 So.2d 1219, 1224.
DISCUSSION
Constitutionality of LSA-R.S. 14:202
The defendant contends the trial court erred in overruling his motion to quash the bill of information and motion in arrest of judgment, in which he argued that
Louisiana law mandates that the Attorney General be served with a copy of the pleading challenging a statute‘s constitutionality so that the Attorney General can elect whether or not to exercise his statutory right to represent the state‘s interest in the proceedings.
In this case, notice has been sent to the attorney general by this court, as mandated by
In State v. Piazza, 596 So.2d 817 (La. 1992), the district court quashed the defendant‘s indictment for violation of
In the instant case, the main thrust of the defendant‘s constitutional argument involves an alleged vagueness in the “criminal portion” of
To determine the constitutionality of a statute, we must follow the basic rules of statutory construction. State v. Shumaker, supra. A statute is presumed to be constitutional, and the burden of clearly establishing unconstitutionality rests upon the party who attacks the statute. State v. Cunningham, 2004-2200 (La.6/13/05), 903 So.2d 1110. A statute should be upheld whenever possible. State v. Shumaker, supra.
To prove that a law is unconstitutional, a defendant is required to show that an ordinary person of reasonable intelligence could not understand and follow the law. State v. Hair, 2000-2694 (La.5/15/01), 784 So.2d 1269. Broad language is not in itself vague, particularly where it is clear that the legislature intended to make criminal all acts of a certain kind. Id. Louisiana criminal statutes must be “given genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.”
A plain reading of the activity proscribed by the statute is sufficiently narrow and gives adequate notice to those who would engage in such conduct, i.e., fail to apply monies received pursuant to a construction contract as necessary to settle claims for material and labor, that the conduct is proscribed. Thus, we conclude that the defendant failed to meet his burden of clearly establishing that the statute is unconstitutional. This assignment lacks merit.
Amendment of Bill of Information
In another assignment of error, the defendant contends the trial court erred, as a matter of law, in permitting the state to amend the bill of information on the day of trial. The state argues the amendment was proper and non-prejudicial.
The defendant was originally charged by bill of information with violating
The substance of an indictment may be amended before trial begins.
In this case, the minutes reveal that the state moved to amend the bill of information before any prospective jurors were called for examination. Therefore, the trial had not commenced, and the state was entitled to amend the bill pursuant to
Additionally, even if the defendant had requested a continuance, the defendant has failed to show that his defense was prejudiced as a result of the amendment to the bill of information. The only change to the bill was the amount of payments the defendant had allegedly misapplied. The defendant knew that he was to be tried for the misapplication of payments, a violation of
The defendant also argues that the amendment to the bill asserting a misappropriation greater than $10,000 is vague in that it does not reflect a crime.
Arraignment
The defendant also contends the trial court erred by failing to arraign him on the amended bill of information. The state maintains that the defendant waived this argument because he did not object to the court‘s failure to rearraign him.
Any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.
In this case, the defendant did not object to the failure to arraign him on the amended charge before the trial commenced. Thus, the issue is waived. See, State v. Ignot, supra. This argument lacks merit.
Motion to Continue
Next, the defendant contends the trial court erred, as a matter of law, in granting the state‘s motion for a continuance on the date of trial, as the motion was not filed at least seven days prior to the commencement of trial as required by
The record shows that on the morning of July 29, 2003, a panel of fourteen potential jurors was called, sworn and questioned. Following a recess, the state notified the trial court that one of its witnesses, Debbie Spears, was refusing to appear and testify because of her alleged fear of the defendant. The state made an oral motion for continuance, which was granted by the trial court over the defendant‘s objection.
A continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced. A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced.
In this case, the minutes reveal that the state moved for a continuance after the first panel of potential jurors had been called, sworn and questioned. Thus, the trial had already commenced, and the state was required to request a recess.
It is well settled that whether the motion was improperly styled as one of continuance or recess, the court may examine the motion as though it had been properly denominated. State v. White, 389 So.2d 1300 (La.1980); State v. Bertrand, 381 So.2d 489 (La.1980); State v. Dickinson, 370 So.2d 557 (La.1979); State v. Mizell, 341 So.2d 385 (La.1976). Thus, although the motion may have been improperly styled as one for “continuance,” it can be reviewed as if it had been properly named as one for recess. State v. Dooley, 38,763 (La.App. 2d Cir.9/22/04), 882 So.2d 731, writ denied, 2004-2645 (La.2/18/05), 896 So.2d 30; State v. Smith, 25,841 (La. App. 2d Cir.02/23/94), 632 So.2d 887.
The standard of review of a motion for recess is the same as the review of a motion for a continuance. State v. White, supra; State v. Dooley, supra. The granting or denial of a motion for continuance or a motion for recess is within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal absent a showing of abuse and specific prejudice.
A motion for a continuance based upon the absence of a witness must state:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.
In this case, the record shows that although the state had not subpoenaed Ms. Spears, she and her attorney had assured the state that she would be present at trial. The state asserted that Ms. Spears was expected to provide material testimony with regard to the defendant‘s banking records. After securing Ms. Spears’ voluntary agreement to testify, the state remained in constant contact with her and her attorney, and travel arrangements had been completed. However,
Under these extenuating circumstances, we cannot say that the trial court abused its discretion in granting a recess. The trial court was satisfied by the state‘s allegations that the defendant had played a role in Ms. Spears’ failure to appear.6 There is nothing in the record to show that the trial court abused its discretion or that the defendant was prejudiced by the delay. Therefore, this assignment of error is without merit.
The Kirkhams’ Testimony
The defendant also contends the trial court erred in allowing Richard Kirkham to testify with regard to the cost of completing the project and the provisions of the contract. He further contends the trial court erred in allowing Karen Kirkham to testify concerning their financial difficulties, her efforts to contact the defendant and that the defendant was “driving a brand new truck.”
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
A trial judge is vested with wide discretion in determining the relevancy of evidence; his ruling will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. State v. Miles, 402 So.2d 644 (La.1981); State v. Jackson, 30,473 (La.App. 2d Cir.5/13/98), 714 So.2d 87, writ denied, 1998-1778 (La.11/6/98), 727 So.2d 444.
In this case, the defendant has not shown how the Kirkhams’ testimony with regard to the defendant‘s failure to complete the project and the consequences of that failure was irrelevant in determining if funds were misapplied, as well as the defendant‘s intent with regard to those funds. However, it may well be that the testimony that the defendant was driving a new truck had no relevance to the case. The defendant objected and moved for mistrial, asserting the testimony prejudiced his case to the extent he was unable to receive a fair trial. As the state correctly points out, the defendant did not request an admonition to the jury. Moreover, the defendant has failed to show how the trial court‘s rulings prejudiced his case. The defendant‘s arguments lack merit.
Jury Instructions
The defendant further assigns as error the trial court‘s failure to give jury instructions as requested by the defense. Specifically, the defendant submitted 24 special requests for jury instructions, and the trial
Under our law, the state and the defendant have the right to submit to the court special written charges for the jury.
In this case, the trial court declined to include proposed jury instruction numbers 1, 7, 10 and 11, stating there is no basis in the law which would support those proposed charges. With regard to proposed jury instruction numbers 2, 4, 6 and 8, the trial court declined to include the instructions based upon his finding that the cases cited by the defendant were inapplicable to the instant case. With regard to proposed jury instruction number 9, the trial court concluded that the statute cited by the defendant is a civil statute and is not applicable in criminal matters. The trial court disallowed proposed instructions numbers 12, 13 and 14, concluding that those provisions of the statute refer to the penalty for the offense and restitution, matters which are within the discretion of the judge, rather than the jury.
We have carefully reviewed the instructions requested by the defendant in light of the instructions actually given by the trial judge. Each of the instructions requested by the defendant was either included in the trial judge‘s instructions or was an incorrect statement of the law which would have required correction or further explanation. Therefore, the trial judge did not err in refusing to give the requested jury instructions.
Further, errors in jury instructions are subject to the harmless error analysis. Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004).
In the instant case, the defendant has made no argument that his rights were substantially violated by the omission of the proposed jury instructions or that he was in any way prejudiced. Thus, we conclude that the defendant‘s argument that the trial court erred in omitting the proposed jury instructions is without merit.
Motion for New Trial
The defendant also assigns as error the trial court‘s denial of his motion for a new trial. According to the defendant, he was entitled to a new trial because the misapplication of construction funds over $10,000 is not delineated in
In State v. Olivier, 2003-1589 (La.App. 3d Cir.6/16/04), 879 So.2d 286, the court stated:
[T]he penalty for a violation of
La.R.S. 14:202 is determined based on the total amount misapplied. The bill of information in the case at bar does not specify whether the Defendant was charged under section (B) or (C) ofLa.R.S. 14:202 . Although value was discussed at trialand the jury returned a verdict finding a specific value, the bill of information did not properly charge the grade of the offense. * * *
While
La.Code.Crim.P. art. 470 does not require that an indictment include a specific monetary value, the allegations in the indictment must be sufficient to determine the grade of the offense.
In the instant case, the amended bill of information charged the defendant as follows:
JACK S. SPEARS committed the offense of misapplication of payments, as set forth in
R.S. 14:202 , in that he did, being a contractor, receive money on account of a contract with RICHARD KIRKHAM, JR. AND KAREN MICHELLE WALKER, for the construction or improvements of a building and did knowingly fail to apply the money received as necessary to settle claims for materials and labor due the construction or under the contract, said misapplication being greater than $10,000.
Although the bill of information did not specify whether the defendant was being charged under section (B) or (C) of the statute, it is clear from the specific language, “said misapplication being greater than $10,000,” that the defendant was being charged under
The defendant also argues that he was entitled to a new trial because the jury instructions and jury verdict form failed to provide for a determination of the amount of contract funds misapplied.
The record shows that the trial court read the bill of information to the jury verbatim, including the charge of misapplication of funds being greater than $10,000. The trial court also specifically instructed the jury that in order to convict the defendant of the offense charged, it must find, beyond a reasonable doubt, that the state proved every essential element of the offense. The trial court proceeded to detail the elements of the offense and instructed the jury with regard to responsive verdicts, including, guilty as charged; guilty of misapplication of payments of $1,000 or less; or not guilty. At no time during the proceedings did the defendant argue that either the bill of information, the jury instructions or jury verdict was invalid due to the jury‘s failure to determine the amount of funds misapplied. Nor did the defendant move for a mistrial. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.
Motion to Reconsider Sentence
Finally, the defendant contends the trial court erred in failing to reconsider the sentence, particularly in light of the failure of the jury to determine the specific amount of misapplication in question.
Neither the language of
CONCLUSION
For the reasons set forth herein, the defendant‘s conviction and sentence are affirmed.
AFFIRMED.
APPLICATION FOR REHEARING
Before BROWN, WILLIAMS, CARAWAY, DREW and LOLLEY, JJ.
Rehearing denied.
Notes
LSA-R.S. 14:202 provides:
A. No person, contractor, subcontractor, or agent of a contractor or subcontractor, who has received money on account of a contract for the construction, erection, or repair of a building, structure, or other improvement, including contracts and mortgages for interim financing, shall knowingly fail to apply the money received as necessary to settle claims for material and labor due for the construction or under the contract.
B. When the amount misapplied is one thousand dollars or less, whoever violates the provisions of this Section shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned for not less than ninety days nor more than six months, or both.
C. When the amount misapplied is greater than one thousand dollars, whoever violates this Section shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned with or without hard labor for not less than ninety days nor more than six months, or both, for each one thousand dollars in misapplied funds, provided that the aggregate imprisonment shall not exceed five years.
D. Any person, contractor, subcontractor, or agent of a contractor or subcontractor who knowingly fails to apply construction contract payments as required in Subsection A shall pay to the court, and the court shall transfer to the person whose construction contract payments were misapplied, an amount equal to the sum of the payments not properly applied and any additional legal costs resulting from the misapplication of construction fund payments, including a fee charged by the clerk of court for handling such payments.
LSA-C.Cr.P. art. 532(1) provides, in pertinent part:
A motion to quash may be based on one or more of the following grounds:
(1) The indictment fails to charge an offense which is punishable under a valid statute.
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