State v. Bay

• Decision Date: 23 May 1988
• Docket Number: No. 87-KA-1790,87-KA-1790
• Citation: 529 So.2d 845
• Court: Louisiana Supreme Court
• Parties: STATE of Louisiana v. Clarion BAY, Jr. 529 So.2d 845

Page 845

529 So.2d 845

STATE of Louisiana v. Clarion BAY, Jr.

No. 87-KA-1790.

529 So.2d 845

Supreme Court of Louisiana.

May 23, 1988.

Rehearing Denied Sept. 8, 1988.

William J. Guste, Jr., Atty. Gen., Don. M. Burkett, Dist. Atty., Elizabeth A. Pickett, Asst. Dist. Atty., for plaintiff-appellee.

Joseph D. Toups, Jr., Baton Rouge, Steve Thomas, Mansfield, Herbert V. Larson, Jr., New Orleans, for defendant-appellant.

COLE, Justice.

Defendant, Clarion Bay, Jr., was convicted of first degree murder and sentenced to death. He appeals, having designated, as provided for in La.C.Cr.P. art. 844(A), six errors to be urged on appeal. Of these six assignments of error, he has briefed only three. In oral argument defendant's attorney stated the three unargued assignments were deleted and had been abandoned. Of the three assignments which were briefed and argued, two relate to the sentencing phase of the bifurcated trial and the other complains there is insufficient evidence in the record to support the conviction itself.

We find merit in defendant's argument that there is insufficient evidence to support a conviction for first degree murder. We do find, however, there is sufficient evidence in the record to support a conviction for second degree murder. In this posture, it is unnecessary to consider the two briefed assignments of error pertaining to the sentencing phase of the trial. The issue then arises as to whether this Court should consider the merits of the three unargued assignments of error or whether we should consider those assignments as abandoned. For the reasons discussed below, we hold the three unargued and unbriefed assignments of error will be considered as abandoned. Thus, having found the evidence sufficient to support the lesser and included crime of second degree murder, we remand for entry of judgment of guilty of second degree murder with the appropriate sentence. ¹

FACTS

On August 17, 1982, a partially decomposed body was found in a wooded tract about 30 feet off a dirt logging trail near Florien, a small town near Many, Louisiana. Aside from a silver cigarette case embossed with a cow's head and horns and containing a BIC lighter, there was nothing to identify the individual. The body itself was in several pieces, having been scattered by small animals. The remains were gathered and sent to Dr. George M. McCormick, a forensic pathologist. Following an autopsy and thorough comparison of dental and medical records furnished by the authorities, Dr. McCormick identified the decedent as Essex Lynn Fogle. As to cause of death, Fogle's shirt was peppered with holes; pellets and paper wadding were recovered from the chest and abdomen areas; and, fracturing and gouging of a thoracic vertebra near the waistline were observed. This led Dr. McCormick to conclude Fogle had been killed by a shotgun blast to the back at "fairly close" range, possibly at a distance of "a few feet." Given the condition of the body, it was impossible to pinpoint the precise date of death. In Dr. McCormick's opinion, between the elements and the animals, "extensive decomposition" would have occurred within ten days to two weeks. Death could have occurred, therefore, anytime between the end of July and about the 5th of August. Subsequent analysis by the Crime Lab determined the pellets and waddings were from No. 1 buckshot shells, fired either from a 12 or 16 gauge shotgun.

Essex "Stovepipe" Fogle had been released from Louisiana Correctional and Industrial School in DeQuincy on February 8, 1982, after earning good-time release from a two year term for felony theft. Records from LCIS helped identify the body and were introduced at trial. Prior to his death Fogle lived in the "Crossing" section of Leesville, an area known for its bars, motels and prostitution. It had been Fogle's habit to gather every day with other men under a big shade tree on Havana Street. Two men who usually joined the crowd were Lonnie Stewart and Edward Bouya. At some point, Fogle stopped showing up. Although neither Steward nor Bouya could be positive as to precisely when this occurred, both men were sure Fogle was in the company of defendant, Clarion Bay, Jr., the last time they saw him.

Bay also lived in the area and was often at the Havana Street meeting place. According to Stewart, he last saw Fogle at a time when Bay said he was going to take Fogle to see some girls in Many, an arrangement with which Fogle agreed. Bouya last saw Fogle as a passenger in a car driven by defendant. As the car passed Bouya, Fogle hollered out the window, "I'm going to Many to fuck with the pretty whores."

Authorities learned that on either the third or the fourth of August defendant brought a shotgun into Marlin Kirkland's Leesville store. Defendant, a regular customer, wanted ammunition but was unsure what type the gun required. According to Kirkland, the weapon defendant carried was a 16 gauge single-shot shotgun. Kirkland sold defendant a package of five No. 1 buckshot shells.

From Clarise Marie White, defendant's girlfriend and the mother of his child, authorities learned that on or about August 8, defendant told her he had shot and killed a man and dumped the body in some woods. When White did not believe him, he drove a few miles out of Florien and parked. After leaving to check whether "it's still there," defendant returned to the car and then led White into the woods. White only saw "something green," but "smelled something [terrible]." Back in the car defendant told her "it wasn't nothing but a cow [he had shown her]." However, defendant subsequently told White he had killed the man because he was a "snitch" and "[b]ecause he was paid to" by one "Missy or Mary Johnson." On another occasion, defendant told White and White's sister-in-law (Cynthia Moore) he and two other men shot and killed a man. Defendant related he shot the man in the head and the second man also shot the victim while the third man struck the victim over the head with a tire iron. Defendant identified his co-participants in the crime, variously, as Donald Richardson and Murphy Ford, and, as Scooby Blue and Bobby Blue.

According to Cynthia Moore, defendant told her he had killed Fogle. She also heard him say "that's what happens to snitches." Defendant elaborated by saying, "they be found with maggots in them." Defendant said two men helped with the killing and identified the co-participants both as Richardson and Ford, and as Scooby Blue and Bobby Blue. Like White, Moore indicated defendant had been joking when he made these statements. Moore, too, confirmed that "Bobby Blue" and "Scooby Blue" were ficticious names.

Defendant made other inculpatory remarks to one James L. Sullivan. According to Sullivan, while he and defendant were in the home of Haywood Franks, the telephone rang. Franks answered it and began talking. Based on Franks' side of the conversation, Sullivan asked defendant what the call was about. Defendant told him it was about "a killing that he had done" for the man Franks was talking to. There had been a problem over "some dope and ...money transactions" and when the victim failed to pay for the drugs, defendant killed him. On another occasion, and in response to Sullivan's request for a gun, defendant told him he would have to check with Franks because his gun had been used in a murder. Defendant also told Sullivan he had shot a man in the face with a shotgun and had dumped the body in some bushes near Many. Defendant said the man was a snitch and, further, that the body had nearly deteriorated before being discovered.

Investigators arranged for White to retrace for them the route taken by defendant through Florien. She directed two officers through the town, to Prospect Road and then to a point in some woods off a logging trail. The spot was precisely where Fogle's body had been discovered.

After giving a statement in which he denied any complicity in the crime, defendant was arrested. The matter was presented to the grand jury but that body pretermitted the case. In March of 1985, the case was submitted to a second grand jury with the result that defendant was indicted for the first degree murder of Essex "Stovepipe" Fogle.

TRIAL POSTURE

Trial commenced May 19, 1986. The state's theory of the case, outlined in its opening statement, was that defendant lured Fogle from Leesville on the pretext of chasing women in Many. Outside Florien, defendant stopped his car and he and Fogle walked into the woods. There, defendant shot Fogle in the back with a 16 gauge shotgun, "inflicting immediate death." Defendant robbed him and left the body in the woods. The state also argued defendant had been offered or received something of value for the crime. Jurors were told the case was not about "the person who allegedly paid the money." Instead, the panel was told to concentrate on the evidence against defendant and not to become

confused by issues that don't have anything to do with your decision. You don't have to decide who paid the money. You don't have to decide why the money was paid. All you have to determine is that [defendant] killed [Fogle], and he did it in exchange for something of value and/or he also did it and robbed him at the time he killed him. That's the two ...things you have to decide and that's all.

Thus, the state asserted the homicide was first degree murder by virtue of defendant's specific intent and because the killing was done either during the commission of an armed robbery or in a murder-for-hire scheme. La.R.S. 14:30(1), (4). ² However, the state adduced no evidence to establish or tending to establish the commission of an armed robbery. While the prosecutor urged jurors during closing arguments to make such a finding, evidence in support of this element of the offense was simply non-existent. In oral argument before this Court the state admitted there was no evidence of a robbery.

Without evidence to show an armed robbery, the state's case...