96-58 La.App. 3 Cir. 10/9/96, State v. McCartney

• Citation: 684 So.2d 416
• Parties: 96-58 La.App. 3 Cir
• Decision Date: 09 October 1996
• Court: Court of Appeal of Louisiana (US)

Page 416

684 So.2d 416

96-58 La.App. 3 Cir. 10/9/96

STATE of Louisiana, Plaintiff-Appellee, v. Robert McCARTNEY, Defendant-Appellant.

No. 96-58.

Court of Appeal of Louisiana,

Third Circuit.

Oct. 9, 1996.

Rehearing Denied Jan. 27, 1997.

Charles F. Wagner, Dist. Atty., James M. Buck, Alexandria, for State of Louisiana.

John Michael Lawrence, New Orleans, for Robert Kevin McCartney.

Robert Kevin McCartney, pro se.

Before SAUNDERS, SULLIVAN and GREMILLION, JJ.

[96-58 La.App. 3 Cir. 1] GREMILLION, Judge.

Defendant, Robert McCartney, was charged by bill of indictment with first degree murder, a violation of La.R.S. 14:30. On May 25, 1993, defendant appeared in court with counsel and entered a plea of not guilty. On April 4, 1995, the state filed a Motion To Amend Original Bill of Indictment which was granted by the trial court. Defendant waived formal arraignment to the amended charge and entered a plea of not guilty. Defendant's request to represent himself was granted on May 31, 1995, after the trial court warned him of the dangers and disadvantages of self-representation as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). After granting defendant's request, the trial court appointed two attorneys from the Public Defender Board to assist him at trial. Thereafter, defendant filed a Motion to Suppress two statements he made to authorities as well as a videotape reenactment of the crime. The trial court denied defendant's motion and he sought writs with this court. In an unpublished writ opinion, State v. McCartney, 95-888 (La.App. 3 Cir. 9/8/95), this court granted defendant's writ in part, holding that the statements and crime reenactment were made after the defendant requested counsel, [96-58 La.App. 3 Cir. 2] therefore the trial court erred in failing to suppress the statements and reenactment. This court noted that the state could still use the statements for impeachment purposes if the defendant testified at trial. On September 12, 1995, defendant's request for a bench trial was granted, which began on September 14, 1995. On September 28, 1995, the trial court found the defendant guilty as charged. Defendant filed a Motion for New Trial which was denied by the trial court on October 3, 1995. Defendant waived the delays and was sentenced to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. On December 5, 1995, the trial court granted the defendant an out-of-time appeal. Appellate counsel has filed eleven assignments of error and three supplemental assignments of error.

FACTS

On April 2, 1993, the defendant assisted John Price in obtaining a vehicle in order to commit an armed robbery. Defendant had the victim, Dale Deselle, Jr., accompany him and John Price under false pretenses. The victim rode with the defendant in the victim's car, followed by Price in the defendant's car. The three then stopped in the woods near Castor Plunge Road in Rapides Parish. The victim exited his vehicle and voluntarily had his hands bound with duct tape because he thought he was involved in a prank. Price exited the other vehicle and shot the victim five times. Three of the shots proved fatal. The victim's body was then dragged into the woods and the pair left in both vehicles. The victim's body was discovered later the same morning.

ASSIGNMENT OF ERROR NUMBER 1

By this assignment of error, the defendant contends the trial court erred in allowing the state to invoke criminal jurisdiction with an indictment that failed to charge a crucial element of the offense as defined by the Louisiana Legislature. Defendant asserts the amended indictment does not conform with La.Code Crim.P. [96-58 La.App. 3 Cir. 3] art. 465(A)(31), (32) because it does not specify which subparagraph of La.R.S. 14:30.1 the state was charging him with. Defendant argues that he requested this information in his bill of particulars and was denied such information. He alleges this resulted in extreme prejudice as he proceeded to trial without being informed of the nature and cause of the accusation against him.

We find no error was committed by the trial court. The amended indictment charging the defendant with second degree murder utilized the short form, which is permitted under La.Code Crim.P. art. 465(A)(32). This court addressed the use of the short form indictment in State v. Doyle, 525 So.2d 1090, 1092 (La.App. 3 Cir.1988), writ denied, 540 So.2d 326 (La.1989):

Although this form of indictment often lacks sufficient information to supply a defendant with information he believes necessary to apprise him of the nature of the charge being levied, it is incumbent upon the defendant to file a motion for a bill of particulars to procure details as to the statutory method by which he committed the offense that he is charged with. See State v. Peterson, 290 So.2d 307 (La.1974).

The record reveals the defendant failed to file a bill of particulars asking the state to designate the underlying felony it intended to prove in developing its prosecution for second degree murder after the indictment was amended. Therefore, the state was not limited in establishing any of the felonies enumerated in La.R.S. 14:30.1. See State v. Baylis, 388 So.2d 713 (La.1980). Additionally, defendant was provided with all police reports, confessions, arrest warrants, witness statements, lab reports, autopsy reports, and expert reports revealing that the defendant and John Price kidnapped the victim in order to obtain his vehicle for use in a bank robbery. Defense counsel and the state also filed a Joint Stipulation stating that a copy of the state's entire file was delivered to defense counsel and "production of this file constitutes full satisfaction of the Motion for Discovery and Inspection, Motion For Bill of Particulars, Motion For Preliminary Examination, and any request for Public Records [96-58 La.App. 3 Cir. 4] pursuant to La.R.S. 44.1, et seq." Accordingly, defendant was fully notified of the offense charged and was not prejudiced by the use of the short form indictment.

For the foregoing reasons, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, defendant contends the trial court erred in holding that his arrest was made with probable cause and in permitting the state to introduce at trial evidence which had been seized as a result of an invalid arrest warrant. Defendant argues that he was illegally arrested without probable cause because the arrest warrant was based on the statement of Terry Price, whose lack of credibility was not made known to the judge issuing the warrant. Defendant feels that the police had a duty to disclose to the judge all contradictory and conflicting testimony given by their source witness.

The Louisiana Supreme Court in State v. Simms, 571 So.2d 145, 148 (La.1990), noted the following:

Probable cause to arrest exists when the facts and circumstances within the officer's knowledge are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Wilson, 467 So.2d 503 (La.1985). The determination of probable cause, although requiring something more than bare suspicion, does not require evidence sufficient to support a conviction. Probable cause, as the very name implies, deals with probabilities. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). The determination of probable cause, unlike the determination of guilt at trial, does not require the fine resolution of conflicting evidence that a reasonable doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the available evidence supports a reasonable belief that the person to be arrested has committed a crime. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); State v. Rodrigue, 437 So.2d 830 (La.1983). The determination of probable cause involves factual and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Ogden and Geraghty, 391 So.2d 434 (La.1980).

[96-58 La.App. 3 Cir. 5] Defendant filed a Motion to Suppress his arrest warrant. At the hearing on the motion, defendant argued that certain statements he made to authorities were obtained as the result of his illegal arrest; his arrest being illegal because there was no probable cause to suspect he committed a crime and the source witness was not credible. After hearing the testimony of several witnesses, the trial court denied the defendant's Motion to Suppress.

La.Code Crim.P. art. 202 provides that a warrant of arrest shall be issued when:

(1) The person making the complaint executes an affidavit specifying, to his best knowledge and belief, the nature, date, and place of the offense, and the name and surname of the offender if known, and of the person injured if there be any; and

(2) The magistrate has probable cause to believe that an offense was committed and that the person against whom the complaint was made committed it.

The original arrest warrant and supporting affidavit were introduced into evidence. The affidavit was prepared and signed by Detective Clyde Terral of the Rapides Parish Sheriff's Office and the warrant was signed by Judge Alfred Mansour. The affidavit essentially stated that John Price, John Mitchum, and defendant kidnapped Deselle in order to steal his car, and that defendant shot Deselle to obtain the car and prove himself to the others. The affidavit further stated that Price told his wife that Mitchum shot Deselle. It also stated that defendant told Price's wife that he shot Deselle. At the trial of the Motion to Suppress, Detective Terral stated he received this information from Captain Mike Villard, who in turn received it from Terry Price, the wife of ...