State v. Belgard

• Decision Date: 25 January 1982
• Docket Number: No. 81-KA-1117,81-KA-1117
• Citation: State v. Belgard, 410 So.2d 720 (La. 1982)
• Parties: STATE of Louisiana v. Alton A. "Buggs" BELGARD.
• Court: Louisiana Supreme Court

Page 720

410 So.2d 720

STATE of Louisiana v.Alton A. "Buggs" BELGARD.

No. 81-KA-1117.

Supreme Court of Louisiana.

Jan. 25, 1982.

Rehearing Denied March 19, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., R. Greg Fowler, Asst. Dist. Atty., for plaintiff-appellee.

Wellborn Jack, Jr. of Jack, Jack, Cary & Cary, Shreveport, for defendant-appellant.

DIXON, Chief Justice^*.

Defendant, Alton A. "Buggs" Belgard, appeals his conviction of attempted second degree murder.He was sentenced to twelve years at hard labor.Defendant's conviction and sentence are affirmed.

Alton Belgard visited the trailer of his legally separated wife, Judy Belgard, on August 30, 1980 in Alexandria, Louisiana.Stephen Saucier, the victim, and his two children were present, as well as the Belgards' daughter, Angie.Defendant entered the trailer with the Belgards' thirteen-year-old son, Robert, at 8:30 p. m. Saucier testified he introduced himself to defendant and extended his hand to shake hands when Belgard swung at his head with a pair of cowboy boots.Saucier blocked the boots and pushed defendant against the wall.He placed his hand on Belgard's back and told him, "Hey, let's talk about this."Saucier then heard a tremendous concussion and felt his knees go out from under him as four or five shots were fired.

Judy Belgard had been in the kitchen.She went to the corner of the room to see what was happening.Stephen Saucier was lying on the floor, and the defendant was standing.Defendant yelled for her to come to him, followed her into the kitchen and hit her head with the gun.He grabbed her arm and jerked her back into the room where Saucier was lying.The defendant then began yelling at Judy Belgard.He told her the incident was all her fault because of her relationship with Saucier.Stephen Saucier sustained multiple gunshot wounds, and Judy Belgard underwent surgery for three fractured skull bones.Alton Belgard turned himself in to the police early the next morning.

Assignments of Error Nos. 1 and 5

Defendant contends the trial court erred in denying pretrial disclosure of oral inculpatory statements made by him.The court's denial of defendant's motion for mistrial, based on the prosecutor's reference in opening statement to other crimes allegedly committed by the defendant, is also assigned as error.Defense counsel does not argue these assignments in brief, but incorporates the argument made at the motion for mistrial for our consideration of them.

In his opening statement the prosecutor remarked:

"The State will prove from other witnesses, Nancy Corso and Frank Corso, Charlotte Sills, Travis Worrell-these are the kinfolk and brothers and sisters of the victim-I mean of Judy Sills Belgard, who came to the scene immediately upon receiving the telephone call 'Help! come now, Bugs is here,' came to the scene and saw Bugs leaving from the house on August 30, 1980.Saw him walking out of the house with a sheepish grin or smile on his face.You'll hear the testimony of Nancy Corso that she reached and picked up a brick to try and stop him and he pointed a pistol to stop him-to stop her from doing that."

Defense counsel objected to the prosecutor's statement that defendant had pointed a pistol at Nancy Corso.The objection was based on the state's reference to the unindicted crime of aggravated assault allegedly committed by the defendant without providing notice under State v. Prieur, 277 So.2d 126(La.1973).

The trial court correctly overruled this objection and denied the motion for mistrial.The general rule is that the prosecution may not introduce evidence of other criminal acts of the accused.An exception is made if the evidence is substantially relevant to some purpose other than to show the accused is a bad person, therefore more likely to have committed the crime.State v. Haarala, 398 So.2d 1093(La.1981);State v. Lee, 381 So.2d 792(La.1980);State v. Monroe, 364 So.2d 570(La.1978).The prohibition does not bar admission of criminal acts that form part of the res gestae.R.S. 15:447;¹R.S. 15:448.²State v. Prieur, supra, does not require the state to provide notice to the defendant of crimes that fall within the res gestae exception.

Nancy Corso arrived at Judy Belgard's trailer shortly after the shooting incident.The defendant was present, and Saucier was lying on the floor.Corso's attempt to stop defendant from leaving resulted in Alton Belgard aiming a gun at her to avoid remaining at the residence.These facts clearly fall within the res gestae exception to the notice requirement of State v. Prieur, supra.The motion for mistrial under C.Cr.P. 770 was properly denied.

The record indicates defense counsel neither objected to nor mentioned the nondisclosure of oral inculpatory statements made by defendant during his argument on the motion for mistrial.The sole basis for the objection was the state's reference to the defendant having pointed a gun at Nancy Corso.This court has consistently held issues and objections not raised at trial will not be considered on appeal unless an error is alleged that is discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence.C.Cr.P. 841 and 920.SeeState v. Duncan, 390 So.2d 859(La.1980);State v. Madison, 345 So.2d 485(La.1977).Thus, we do not consider defendant's assignment of error based on nondisclosure of oral inculpatory statements.

Assignments of Error Nos. 2 and 3

By these assignments defendant asserts the trial court erred in denying his motion for mistrial and motion for new trial based on the prosecutor's erroneous statements to the jury venire during voir dire examination.The defendant had entered a plea of not guilty and not guilty by reason of insanity.The prosecutor questioned prospective juror Hazel Roberts during voir dire:

"Mrs. Roberts, do you understand that by entering a plea of Not Guilty and Not Guilty by reasons of insanity, the defendant doesn't say he's innocent of the charge.He just says I want the State to come forward and prove my guilt?"

Defense counsel objected to the question.The trial court sustained the objection and admonished the jury to disregard the comment of the prosecutor.The court informed the jury the prosecutor's comment was not a correct statement of the law.Defense counsel then argued, outside the presence of the jury, that the prosecutor's statement tainted the entire jury venire, and he requested a mistrial.The trial court denied the motion for mistrial after extensive argument by the prosecutor and defense counsel.The judge informed the jury venire of the applicable law.³Defendant contends the statement by the prosecutor was an expression of his personal belief that is prohibited by State v. Kaufman, 304 So.2d 300(La.1974), cert. den.429 U.S. 981, 97 S.Ct. 495, 50 L.Ed.2d 591(1976).

State v. Kaufman, supra, held the prosecutor's expression of personal opinion of the defendant's guilt in his argument to the jury was impermissible and reversible error.The prosecutor's remarks in this case, however, were not an expression of his personal opinion about the defendant's guilt.The prosecutor made an improper and incorrect statement of the law that was corrected by the trial court's admonition to the jury.

The trial judge is given discretion to determine whether a fair trial is impossible, or an admonition is adequate to assure a fair trial when prejudicial conduct does not fit within the mandatory mistrial provisions of C.Cr.P. 770.SeeState v. McMahon, 391 So.2d 1120(La.1980);State v. Domangue, 350 So.2d 599(La.1977).The trial judge correctly determined the admonition was sufficient in this case.The harsh remedy of mistrial is not justified when an admonition will preserve the defendant's rights.State v. McMahon, supra;State v. Wesley, 347 So.2d 217(La.1977).

The trial judge thoroughly informed the jury venire about the law applicable to this case.He clearly advised them the prosecutor's statement was incorrect.During his charge to the jury, the trial judge instructed the jurors that there was a presumption of innocence, and the state had a duty to prove guilt beyond a reasonable doubt.Under these circumstances, the prosecutor's remarks did not make it impossible for defendant to receive a fair trial, and the assignment lacks merit.

Immediately after the trial judge admonished the jury to disregard the above statement, the prosecutor asked the prospective juror the following question:

"Mrs. Roberts, do you also understand that the law presumes that a defendant intends the natural and probable consequences of his acts?"

Defense counsel objected to this question, and moved for a mistrial.The trial judge denied the motion for mistrial following argument by counsel.The jury was told to disregard the prosecutor's comment because it was an incorrect statement of the law.The judge further advised them to only follow the law as given by the court.

Defense counsel argues that the statement was prejudicial and unconstitutional in the light of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39(1979)andState v. Heads, 385 So.2d 230(La.1980).He asserts the combination of the prosecutor's two erroneous remarks was too prejudicial to the defense of insanity to warrant merely an admonition by the trial judge.

In Sandstrom v. Montana, supra, 442 U.S. at 513, 99 S.Ct. at 2454, 61 L.Ed.2d at 44, the United States Supreme Court found an instruction, "the law presumes that a person intends the ordinary consequences of his voluntary acts," suggestive of serious constitutional problems.The court reasoned the presumption could have the effect in a deliberate homicide prosecution of shifting the burden to defendant to show he lacked the requisite mental state for the crime.Such use of the presumption by the jury would alleviate the state's burden of proving every fact necessary...