State v. de la Beckwith

• Decision Date: 28 February 1977
• Docket Number: No. 58586,58586
• Citation: State v. de la Beckwith, 344 So.2d 360 (La. 1977)
• Parties: STATE of Louisiana v. Byron de la BECKWITH.
• Court: Louisiana Supreme Court

Page 360

344 So.2d 360

STATE of Louisiana v. Byron de la BECKWITH.

No. 58586.

Supreme Court of Louisiana.

Feb. 28, 1977.

Rehearing Denied April 22, 1977.

Travis Buckley, Laurel, Arthur A. Lemann, III, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.

MARCUS, Justice.

Byron de la Beckwith was charged by bill of information with the crime of knowingly transporting, carrying and conveying dynamite within the boundaries of this state without a license or permit in violation of La.R.S. 40:1471.8. After trial by jury, he was found guilty as charged. Subsequently, he was sentenced to serve five years in the custody of the Department of Corrections. On appeal, he relies upon sixteen assignments of error for reversal of his conviction and sentence. ¹ We will consider these assigned errors in the order in which they appear in the record.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred in overruling his motion to quash on the ground that La.R.S. 40:1471.18 is unconstitutional.

La.R.S. 40:1471.1--1471.22 is a comprehensive statute regulating explosives. La.R.S. 40:1471.8, which defendant was charged with having violated, provided that it shall be unlawful for any person to transport any explosives into this state or within the boundaries of this state without a license or permit. La.R.S. 40:1471.18, which establishes the penalty for that offense, states:

Any person who manufactures, purchases, keeps, stores, possesses, distributes, or uses any explosive with the intent to harm life, limb or property, shall, upon conviction, be guilty of a felony and liable to a fine of not less than five thousand dollars nor more than ten thousand dollars or imprisonment in the state prison not less than five years nor more than ten years, or both. Any person who shall in an application for a license or permit as herein provided, knowingly make a false statement, or who shall obtain explosives under a false statement, pretense or identification, or who shall knowingly otherwise violate any provisions of this Part, or regulation promulgated pursuant to this Part, shall, upon conviction, be guilty of a felony and liable to a fine of not less than two hundred fifty dollars nor more than one thousand dollars or imprisonment in the state prison not less than one year nor more than five years, or both. Possession of explosives under circumstances contrary to the provisions of this Part or such regulations shall be prima facie evidence of an intent to use the same for destruction of life, limb or property. Conviction under this section of any person holding a license or permit shall effect cancellation thereof.

Defendant urges that La.R.S. 40:1471.18 is unconstitutional because it states that possession of explosives in violation of La.R.S. 40:1471.1--1471.22 constitutes prima facie evidence of an intent to use the explosives for destruction of life, limb, or property. He contends that a person may possess explosives for several other reasons other than for the intentional destruction of life, limb or property and, accordingly, that the correlation between illegal possession and possession with intent to destroy life, limb or property is irrational.

We find it unnecessary to pass upon defendant's contention because defendant was not charged with possession of explosives with intent to harm life, limb or property. The bill of information charged defendant with knowingly transporting explosives without a license or permit in violation of La.R.S. 40:1471.8. Possession of explosives with the intent to harm life, limb or property is in violation of La.R.S. 40:1471.18 and carries a heavier penalty.

While La.R.S. 40:1471.18 also establishes the penalty for violation of La.R.S. 40:1471.8 (as well as other violations of La.R.S. 40:1471.1--1471.22 and the regulations promulgated thereto), it is clear that possession of explosives with intent to harm life, limb or property and knowingly transporting explosives without a license or permit are two separate and distinct offenses. Further, our review of the record convinces us that the question of defendant's intent to harm life, limb or property and the rule that his unlawful possession of explosives would be prima facie evidence of such intent, was carefully kept from the jury's consideration. At a hearing held on December 6, 1974, the trial judge emphasized to the prosecutor and defense counsel that defendant was not charged with possession with intent to harm life, limb or property, that any testimony relative to such intent would result in a mistrial, and that if the state made any comments dealing with intent to harm life, limb or property these comments would be stricken. A review of the state's opening statement indicates its intention not to offer any evidence regarding such intent. Finally, the trial judge admonished the jury, during the state's closing argument, that since defendant was charged with knowingly transporting explosives into the state without a license and not with possessing explosives with intent to harm life, limb or property, it should disregard all comments regarding such intent.

The trial judge properly overruled defendant's motion to quash on the ground that La.R.S. 40:1471.18 is unconstitutional. This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 2

Defendant filed a motion to quash the information on the grounds of double jeopardy and collateral estoppel, asserting that he had been acquitted in federal court on January 21, 1974 on essentially the same charges for which he was being prosecuted by the state. The trial judge denied the motion to quash, ruling that defendant's acquittal in the federal charges did not bar his prosecution for violation of state law. Defendant assigns this ruling as error.

The trial judge's ruling was correct. The prosecution by the state did not place defendant twice in jeopardy for the same offense as proscribed by the federal and Louisiana constitutions. U.S.Const. amend. 5; La.Const. art. 1, § 15 (1974). In Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), the accused was tried and convicted of robbery of a federally-insured bank in the state court after he had been acquitted on federal charges for the same offense. The United States Supreme Court held that the subsequent trial of defendant in state court did not deprive him of due process of law under the fourteenth amendment to the United States Constitution. ² Likewise, in Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), the Court held that a federal prosecution on the same charge on which the accused had been convicted in state court did not place the defendant twice in jeopardy for the same offense under the fifth amendment. Together, these cases 'teach that successive prosecutions by Different sovereignties do not violate the double jeopardy clause of the Fifth Amendment and are therefore constitutionally permissible.' United States v. Jones, 174 U.S.App.D.C. 34, 527 F.2d 817 (1975).

In Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), the Supreme Court held that the state and a municipality were not separate sovereignties. Accordingly, because the accused had been convicted in municipal court for violation of a city ordinance, a second trial in state court for the same acts (which also violated state law) constituted double jeopardy. Bartkus and Abbate were distinguished, but not overruled in Waller, and there is no question as to their continuing validity. ³ The holdings in Bartkus and Abbate are codified in our Code of Criminal Procedure, which specifically provides that double jeopardy does not apply to a prosecution under a law enacted by the Louisiana legislature if the prior jeopardy was in a prosecution under the laws of another state or the United States. La.Code Crim.P. art. 597, As amended, La. Acts 1972, No. 648, § 1. Therefore, defendant's plea of former jeopardy is without merit.

Nor is the state prosecution barred by collateral estoppel. The doctrine of collateral estoppel 'means simply that when an issue of ultimate fact has been determined by a valid and final judgment, that issue cannot again be litigated Between the same parties in any future lawsuit' (emphasis added) and is embodied in the fifth amendment guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Since the first prosecution was in federal court, identity of parties, an essential requirement of collateral estoppel, is lacking. Cf. State v. Hill, 340 So.2d 309 (La.1976). This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 3

Three days before the trial was scheduled to begin, defendant filed a motion for change of venue. In the motion, he alleged that on account of the publicity attending his arrest and pending trial there existed such public prejudice against him that a fair and impartial trial could not be obtained in Orleans Parish.

At the hearing on the motion for change of venue held on May 15, 1975, the day of the trial, defendant produced in support thereof an article concerning the case in the previous day's edition of the New Orleans States-Item. He also argued that local redio and television stations had broadcast stories about the trial the night before, and the trial judge issued a subpoena to all news media asking them to transcribe the broadcasts relative to the trial of the case. The defendant offered no other evidence in support of his motion. The trial judge, rather than rule on the motion for change of venue immediately, then conducted, with defendant's acquiescence, a preliminary, or 'dry run,' voir dire examination of fifteen prospective jurors. He proceeded to question them concerning their knowledge of the case through pretrial publicity for the purpose...