27,287 La.App. 2 Cir. 9/27/95, State v. Coates

• Decision Date: 27 September 1995
• Citation: 27,287 La.App. 2 Cir. 9/27/95, State v. Coates, 661 So.2d 571 (La. App. 1995)
• Parties: 27,287 La.App. 2 Cir
• Court: Court of Appeal of Louisiana

Page 571

661 So.2d 571

27,287 La.App. 2 Cir. 9/27/95

STATE of Louisiana, Plaintiff-Appellee, v. John Anthony COATES, Defendant-Appellant.

No. 27287-KA.

Court of Appeal of Louisiana Second Circuit.

Sept. 27, 1995.

John William Focke, II and Peter Edwards, Monroe, for appellant.

William R. "Billy" Coenen, District Attorney, Penny Wise-Douciere, Asst. District Attorney, Rayville, for appellee.

Before NORRIS, LINDSAY and WILLIAMS, JJ.

NORRIS, Judge.

John Coates was originally charged in Morehouse Parish with first degree murder, and later manslaughter by amended bill of information. He pled guilty to manslaughter under a plea bargain and was sentenced to 21 years imprisonment at hard labor. La.R.S. 14:31. Following this conviction, the Richland Parish District Attorney's office charged Coates with second degree kidnapping. La.R.S. 14:44.1. He proceeded to jury trial and was found guilty. The trial court sentenced him to 40 years imprisonment at hard labor, two years to be served without benefit of parole, probation or suspension of sentence, to run consecutively with the sentence for manslaughter. Coates filed a timely motion to reconsider the sentence. Coates now appeals both the conviction and sentence for second degree kidnapping. For the following reasons, we affirm.

Facts

The facts viewed in the light most favorable to the prosecution are as follows. ¹ On the evening of July 5, 1990, Coates and two friends, Amanda Stinson and John Hall, went to the Melody Lounge located in the town of Rayville in Richland Parish. Jerry Richardson, the victim, was also at the Melody Lounge that night. Richardson left the bar with Coates, Stinson and Hall, believing that they were going to get some crack cocaine. Hall, driving the group in Coates's truck, stopped at the Mon-Ray Concrete Plant less than a mile away, and also located in Richland Parish. The three men got out of the truck allegedly just to go to the bathroom. Coates returned to the truck minutes later to get a rather large 6-volt battery; according to Stinson, he stated he was going to "beat the guy up" and "he better have at least fifteen dollars on him." R.p. 767. Stinson saw Coates hit Richardson in the head with the battery; Coates admitted at least beating Richardson with his fists. When Richardson fell to the ground, Coates and Hall began kicking him; at this point, Stinson got out of the truck and participated in kicking him. The men tore off Richardson's clothes (Coates admitted cutting his shirt off with a knife) and ordered him to get in the back of the truck. Hall then drove approximately 19 miles to a secluded, wooded area in neighboring Morehouse Parish. Coates and Hall ordered Richardson out of the truck and began beating him again. Stinson grabbed a tire tool from the truck and hit Richardson in the head. According to Stinson's statement Hall and Coates, in that order, slit Richardson's throat. Coates stated that Hall actually had the knife and killed Richardson. Richardson was still alive when Coates and Hall dragged him into the woods; Stinson remained near the truck. When they returned they told Stinson that he was dead.

Richardson's battered body was discovered four days later by an area resident. The Morehouse Parish Sheriff's Department launched an investigation and soon arrested Coates, Hall and Stinson for Richardson's murder. Hall led police to the concrete plant where they recovered most of Richardson's clothes and his empty wallet; Coates had given Richardson's pants and the knife to a friend who later gave the evidence to police. Coates was indicted in Morehouse Parish for first degree murder. ² The state then filed a bill of information charging Coates with manslaughter. Coates pled guilty to manslaughter and was sentenced to 21 years imprisonment at hard labor. He was subsequently charged in Richland Parish with second degree kidnapping, convicted by a jury and sentenced to 40 years imprisonment at hard labor, two years without benefit, to run consecutively with the previous sentence. Coates now appeals his conviction and sentence, advancing seven assignments of error.

Assignment No. 1--Double Jeopardy

By this assignment, Coates contends the trial court erred in denying his motion to quash the bill of information for second degree kidnapping, based on double jeopardy. Coates urges that double jeopardy prevents a conviction for both manslaughter and second degree kidnapping.

A person cannot twice be put in jeopardy for the same offense. U.S.C.A. Const. amend. 5; La. Const. Art. 1 § 15; LaC.Cr.P. art. 591. The double jeopardy clause protects against multiple punishments for the same offense as well as a second prosecution for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); State v. Vaughn, 431 So.2d 763 (La.1983). Double jeopardy exists in a second trial only when the offense charged in that trial is (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. La.C.Cr.P. art. 596.

The Supreme Court applies the "same transaction" test to resolve double jeopardy issues. That test provides:

Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).

This rule is constitutionally required of the states. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Knowles, 392 So.2d 651 (La.1980).

In addition to this rule, the Louisiana Supreme Court applies and relies more heavily upon the "same evidence" test:

If the evidence required to support a finding of guilt of one crime would also have supported a conviction for the other, the two are the same under a plea of double jeopardy, and the defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for a conviction, not all the evidence introduced at trial.

State v. Coody, 448 So.2d 100 (La.1984); State v. Steele, 387 So.2d 1175 (La.1980).

Where one of the offenses is felony murder, it is well settled that conviction of both felony murder and the underlying felony is barred by double jeopardy. Harris v Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per curiam); State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974). The underlying felony, a lesser-included offense of felony murder, is considered the "same offense" for double jeopardy purposes. Sekou v. Blackburn, 796 F.2d 108 (5th Cir.1986). When proof of the commission of a felony is an essential element of felony murder or attempted felony murder, Louisiana courts have held that the defendant cannot be convicted and punished for both the murder or attempted murder and the underlying felony. State ex rel. Wikberg, supra; State v. S.P., 608 So.2d 232 (La.App. 5th Cir.1992); State v. Lee, 554 So.2d 180 (La.App.2d Cir.1989). Also generally, conviction of any lesser included offense of felony murder and the underlying felony violates double jeopardy. State v. Powell, 598 So.2d 454, 470 (La.App.2d Cir.), writ denied, 605 So.2d 1089 (1992), and citations therein.

The Harris rule, however, bars only successive prosecutions for the underlying felony relied upon and proved in the earlier felony murder prosecution. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). The Court in Vitale clarified its reasoning in Brown v. Ohio, supra (wherein Brown was first convicted of joyriding and later of auto theft and the court held that a conviction for a lesser-included offense precludes later prosecution for the greater offense):

'[T]he prosecutor who has established joyriding need only prove the requisite intent in order to establish auto theft.' But we also noted that 'the prosecutor who has established auto theft necessarily has established joyriding as well.' Both observations were essential to the Brown holding. Had the State been able to prove auto theft, without also proving that the defendant took, operated, or kept the auto without the consent of the owner--if proof of the auto theft had not necessarily involved proof of joyriding--the successive prosecutions would not have been for the "same offense" within the meaning of the Double Jeopardy Clause. Vitale, 447 U.S. at 417, 100 S.Ct. at 2265-2266.

The U.S. Fifth Circuit, based on Harris and Vitale, supra, has thus held that "the Double Jeopardy Clause does not bar successive prosecutions for felony-murder and an underlying felony (regardless of which prosecution is first), so long as the specific underlying felony which is the subject of the earlier (or later) prosecution does not form the sole basis for the felony-murder prosecution." Sekou v. Blackburn, supra at 109 (emphasis added). Stated simply, a defendant may be convicted of both felony murder and an underlying felony if another separate felony could have served as the basis for the felony murder conviction. Neville v. Butler, 867 F.2d 886 (5th Cir.1989).

On appeal, Coates argues that the subsequent prosecution and conviction for second degree kidnapping violated double jeopardy principles because that offense could have formed the basis for his guilty plea to and earlier conviction for manslaughter (La.R.S. 14:31A(1)). ³ Applying the above cited principles of law, however, we find no double jeopardy violation in the instant case.

Coates's entire argument rests upon the assumption that second...