State v. Anthony

• Citation: 427 So.2d 1155
• Decision Date: 23 February 1983
• Docket Number: No. 82-K-1664,82-K-1664
• Parties: STATE of Louisiana v. Michael ANTHONY.
• Court: Supreme Court of Louisiana

Page 1155

427 So.2d 1155

STATE of Louisiana v. Michael ANTHONY.

No. 82-K-1664.

Supreme Court of Louisiana.

Feb. 23, 1983.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for relator.

Michele Fournet, Asst. Public Defender, Indigent Public Defender Office, for respondent.

DIXON, Chief Justice.

On September 21, 1981 defendant Michael Anthony was indicted by the grand jury for first degree murder, in violation of R.S. 14:30. ¹ The defendant moved for a bill of particulars requesting the aggravating circumstances to be relied on in seeking the death penalty. C.Cr.P. 905.4. In response the state declared that it intended to show proof of a perpetration and attempted perpetration of an aggravated burglary, and proof that the defendant had a significant prior history of criminal activity. A motion to quash was filed by defendant, alleging that flight from the scene of an aggravated burglary is not in the perpetration of the burglary, and, therefore, is not an aggravating circumstance within the intent of the first degree murder statute. R.S. 14:30(1). On May 28, 1982 the trial court heard and granted the motion to quash. This court granted the state's application for writs.

At the argument on the motion to quash, the state and the defendant agreed to the following facts:

"MR. HESTER: Well, Judge, for the record, this is a fantastically complicated case but to give you the basic facts upon which the State relies on to establish this as a first degree murder is we allege that Michael Anthony burglarized the apartment of William Squire which is located at 710 Park Boulevard; that he left that apartment, went a couple of blocks and snatched a lady's purse and that he was pursued and the purse was retrieved. He escaped by going back into the Squire's apartment at which time he armed himself with a knife. So there we have the aggravated burglary. He left the apartment and unfortunately Miss Summers, Miss Angela Summers, age eighty three who lived at 720 Park Boulevard, in other words either next door or one house down, appartently (sic) saw him in his attempt to escape and at that time he slashed her throat and killed her. So our theory is that the aggravated circumstance is aggravated burglary because an escape is a part of the res gestae of crime. That's essentially it. It's much more complicated than that. I am just trying to give you the basic theory of this case.

THE COURT: Ms. Bonnie?

MS. JACKSON: Yes sir. The defense agrees with the State that the State's evidence if true would establish those facts but it's our position that the burglary took place upon the first entry into the apartment. He left the apartment, allegedly committed a purse snatching and returned to the apartment but that the purpose for returning to the apartment was not to commit burglary, that he did not have the intent to commit a theft or other felony upon entering the apartment. His purpose for entering the apartment on the second time was to hide or conceal himself from detection as a result of the purse snatching and that upon leaving the scene of the burglary that had happened previously it was not flight from the scene of an aggravated burglary and was not part of the res gestae of the aggravated burglary at that point and that under those circumstances his flight from the scene would not be part of the res gestae of an aggravated burglary and therefore was not committed during the perpetration or attempted perpetration of an aggravated burglary.

THE COURT: Can you give me any indication as to the time frame we address?

MR. HESTER: Of course, nobody actually witnessed the murder but it had to be a matter of seconds or maybe a minute from the time he exited that apartment of Mr. Squire's and ran across Miss Summers, a matter of feet, too. As far as distance, maybe a hundred feet or less."

The state contends that since the murder was committed within the "res gestae" of the felony charged, it was committed "in the perpetration" of the felony. Because the aggravated burglaries and the homicide were parts of one continuous transaction and were closely connected in point of time and place, the state argues that the first degree murder statute should apply. For support, the state refers to Conrad v. State, 75 Ohio St. 52, 70-71, 78 N.E. 957, 959-960 (1906), which held that:

"... when a burglary has been planned, in order to carry it out, or, in other words, to perpetrate it, the burglar must go to the building; he must break and enter it; he may effect his purpose or attempt it, and he must come away; for the very nature of the transaction implies that the burglar will not remain in the building. An infinite variety of things may happen in carrying out the crime. The perpetrator may kill a man while going to or trying to enter the building, he may kill a man after he has broken and entered the house, and he may kill a man while trying to escape, either in the house or outside of it. Can any sound reason be suggested why the killing in any one of these instances might be in the perpetration of or attempt to perpetrate a burglary, and not so in the others? The crime of murder in the first degree as defined by the statute (section 6808, Rev.St. 1906) certainly cannot by any reasonable construction be confined to the moment of breaking and entering the house, the crucial point of the definition of burglary; ..."

R.S. 14:30 defines first degree murder as "the killing of a human being ... when the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated ... burglary ..." Aggravated burglary falls expressly within the purview of Louisiana's felony murder rule.

Aggravated burglary is defined as "the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender, (1) Is armed with a dangerous weapon; or (2) After entering arms himself with a dangerous weapon; or (3) Commits a battery upon any person while in such a place, or in entering or leaving such a place." R.S. 14:60.

The definition of aggravated burglary in R.S. 14:60 can be distinguished from the circumstances which may occur "in the perpetration" of a particular aggravated burglary for purposes of R.S. 14:30. The definition is invariable. The particular act must meet the requisites of the statutory definition in order to be classified as an aggravated burglary. However, the things which occur in perpetrating the aggravated burglary vary with every case. These include the method of entry, the particular felony or theft to be committed, and the means of escape.

Many courts in deciding whether a killing which occurred after the commission of the felony was committed "in the perpetration of" the felony have held that the killing was within the ambit of the statute if it was within the "res gestae" of the underlying felony. See, e.g., Bissot v. State, 53 Ind. 408 (1876); State v. Squire, 292 N.C. 494, 234 S.E.2d 563, cert. denied, Brown v. North Carolina, 434 U.S. 998, 98 S.Ct. 638, 54 L.Ed.2d 493 (1977); Conrad v. State, supra. The courts have generally spoken in terms of the "res gestae" of the crime when faced with the problem of determining when the underlying felony terminated for purposes of applying the felony murder doctrine. Payne v. State, 81 Nev. 503, 406 P.2d 922 (1965), cert. denied, 391 U.S. 927, 88 S.Ct. 1826, 20 L.Ed.2d 666 (1968). Res gestae, however, is merely a "label for the period within which a killing may be statutory felony murder." Cadmus, The Beginning and End of Attempts and Felonies Under the Statutory Felony Murder Doctrine, 51 Dick.L.Rev. 12, 18 (1946). The res gestae of the crime begins at the point where an indictable attempt is reached and ends where the chain of events between the attempted crime or completed felony is broken, with that question usually being a fact determination for the jury. Cadmus, supra.

In the instant case the indictable event occurred when the defendant broke into the residence the first time with the intent to commit a felony or theft therein. He left the residence with stolen goods and then committed three other offenses within a short period of time--a purse snatching, a second unauthorized entry, and a homicide. At trial for any of these offenses, evidence of the other offenses could be admissible as part of the res gestae.

The res gestae doctrine in Louisiana is primarily an evidentiary tool. Evidence that forms part of the res gestae, such as spontaneous utterances and declarations, is always admissible. State v. Williams, 383 So.2d 369 (La.1980), cert. den., 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 828 (1981). Evidence of other crimes has also been held admissible as part of the res gestae. State v. Davis, 311 So.2d 860 (La.1975).

"Res gestae" language has not been used in conjunction with the first degree murder statute in Louisiana, even though it has been frequently used in this manner in other jurisdictions. See, e.g., Pickle v. State, 345 So.2d 623 (Miss.1977); Haskell v. Commonwealth, 218 Va. 1033, 243 S.E.2d 477 (1978). Within the context of the felony murder rule, the term "res gestae" has been used to signify that the felony and the homicide form part of a continuous transaction (People v. Chavez, 37 Cal.2d 656, 234 P.2d 632 (1951)); that the homicide be incidental to the felony (Parson v. State, 222 A.2d 326 (Del.Sup.1966), cert. denied, 386 U.S. 935, 87 S.Ct. 961, 17 L.Ed.2d 807 (1967)); and that there be no break in the chain of events between the felony and the homicide (Payne v. State, 81 Nev. 503, 406 P.2d 922 (1965), cert. denied, 391 U.S. 927, 88 S.Ct. 1826, 20 L.Ed.2d 666 (1968)). These definitions are similar to the description of res gestae set forth in R.S. 15:448. ² When "res gestae" has been used...