State v. Bolton, 81-KA-0502

• Decision Date: 16 November 1981
• Docket Number: No. 81-KA-0502,81-KA-0502
• Citation: 408 So.2d 250
• Parties: STATE of Louisiana v. Edgar S. BOLTON.
• Court: Louisiana Supreme Court

Page 250

408 So.2d 250

STATE of Louisiana v. Edgar S. BOLTON.

No. 81-KA-0502.

Supreme Court of Louisiana.

Nov. 16, 1981.

Rehearing Denied Jan. 25, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., Allen W. Helm, Lavalle Salomon, Asst. Dist. Attys., for plaintiff-appellee.

James D. Sparks, Monroe, for defendant-appellant.

KLEES, Justice, Ad Hoc. ^*

The defendant, Edgar S. Bolton, was charged on August 14, 1979, by bill of information with aggravated crime against nature on a minor, in violation of La.R.S. 14:89.1 ¹, within the time period between March 1, 1979 and June 30, 1979. The defendant pled not guilty, filed a motion to suppress evidence, which was denied, and stood trial before a twelve person jury beginning on January 10, 1980. On January 11, 1980, ten of the twelve jurors reached a verdict of guilty as charged. On November 26, 1980, the trial court sentenced defendant to five years at hard labor. The defendant appeals his conviction, alleging nineteen assignments of error.

FACTS

From March, 1979 through June, 1979, the victim resided with his grandparents, twin brother Johnny, and step-brother, Kenneth, at 1402 Mack Street, Monroe, Louisiana. He was nine years old at the time. Edgar Bolton (Age 74), the defendant, moved next door with his wife, apparently in the fall of 1978. The three boys became friendly with the defendant, watched him upholster old chairs and sometimes worked for him, cleaning his house or workshop.

In March, 1979, the three boys were playing with some tadpoles on the front porch of defendant's house. The defendant came outside and pulled the victim inside. He then locked the front door, led the victim to the back bedroom, laid him on a bed, unzipped his own pants, made the victim suck his penis and stuck his penis in the victim. The victim's step-brother ran around to the back of the house and viewed this through the bedroom curtains. After this incident it appears the defendant performed various deviate sexual acts with the victim, including sticking his penis in him, making him suck his penis, caressing his genitals with the victim's hand and a vibrator and having him watch him ejaculate into a rubber hose attached to the vibrator. The defendant then offered the victim money if he would not tell his momma what they did.

MOTION TO REMAND

Defendant on September 29, 1981 filed a "Motion to Remand Pursuant to Article 854, Louisiana Code of Criminal Procedure," attaching a "Motion for a New Trial" which he filed in the District Court, alleging the existence of newly discovered evidence.

A verdict in this matter was rendered on January 11, 1980 and sentence was imposed on November 26, 1980. Defendant contends that the motion for new trial was timely filed under C.Cr.P. Arts. 851 and 853.

La. Code Criminal P. Art. 851 provides in pertinent part:

The court, on motion of the defendant, shall grant a new trial whenever:

(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

La.Code Crim.P. art. 853 provides in pertinent part:

When the motion for a new trial is based on ground (3) of Article 851, the motion may be filed within one year after verdict or judgment of the trial court, although a sentence has been imposed or a motion for a new trial has been previously filed; but if an appeal is pending the court may hear the motion only on remand of the case.

Since more than one year has passed from the verdict date to the filing of the motion for new trial it is obvious that defendant's contention, that the motion for new trial was filed timely, is that it was filed within one year of sentencing.

As expressed above under La.Code Crim.P. Art. 853 the motion may be filed within one year after verdict or judgment of the trial court, although a sentence has been imposed... (Emphasis added) In State v. Blue, 64 So. 411, 134 La. 561 (La.1914) this court defined verdict as:

(6) The word "verdict" is derived from the Latin "veredictum," meaning a true declaration. It is the answer of the jury made upon any cause, civil or criminal, committed by the court to their examination. Whatever they sign beyond this is immaterial, and to be rejected. It is a very important act; it is the culmination of the trial, and embodies the conclusion of the jury upon the questions of fact litigated on the trial. It is the decision of the jury, and, as such, it must stand if it is clear, intelligible, and responsive to the charge.

State v. Jackson, 362 So.2d 766 (La.1978) and State v. Molinario, 383 So.2d 345 (La.1980) both refer to new trial motions filed "within one year after verdict" although they do not deal directly with the issue presented herein.

As used in La.Code Crim.P. Art. 853, the verdict or judgment of the trial court indicates a finding of guilt or innocence and in our opinion does not include sentencing. Accordingly we deny the motion to remand and will now address ourselves to the issues before us on appeal.

ASSIGNMENTS OF ERROR NOS. 1 AND 16

By these assignments, the defense argues that the trial court erred in denying a motion to suppress as untimely filed and in denying a motion for a new trial on grounds that evidence taken from defendant's house was unconstitutionally seized.

On January 4, 1980, the state filed a "Notice of Intent to Offer Evidence of Other Crimes." The state thereby notified defendant that it intended to prove defendant's lustful disposition for the victim by other acts of the defendant, consisting of placing the penis of the victim in a foam rubber tube or hose, which was connected to a hand held vibrator later removed by the police. On January 10, 1980, the first day of trial, defense counsel filed a "Motion to Suppress" this evidence, on the grounds that it would enrage a jury against defendant. Defense counsel therein claimed that the aforementioned "notice" provided his first knowledge of this evidence, and urged, "that the showing or use of this apparatus should be suppressed in that it is an indication of another crime other than that which your movant is being tried for." The trial court denied this motion on grounds it was untimely, and has noted in its per curiam that defendant answered ready for trial on January 9, 1980, after already receiving the state's notice on January 4, 1980. Accordingly, the trial court conducted no hearing into the grounds of the motion.

Counsel argues in brief that the factor of surprise cures any untimeliness under La.C.Cr.P. Art. 703, the basis of the trial court's denial of the motion. ² The state contends that since defendant was present when the item was seized from his home on July 18, 1979, and the arresting officer testified to the continuing nature of the crime at the preliminary examination, both defendant and defense counsel were placed on notice of the state's intent to introduce this evidence. The state also submits that since counsel did not file any motions for discovery or particulars, he should not be able to claim surprise under La.C.Cr.P. Art. 703.

The state, defense and the trial court all appear to be arguing under the wrong law. Despite its title, counsel's motion was clearly not challenging the introduction of the vibrator apparatus under the Fourth Amendment or La.Const.1974, Art. I, § 5. Rather, it questioned the admissibility of the evidence under Louisiana's system and intent statutes, R.S. 15:445 and 446. Viewed in that light, the trial court should have granted the defense a hearing. In State v. Prieur, 277 So.2d 126 (La.1973), this Court established procedural guidelines for the use of other crimes evidence at trial. Prieur requires that "(t)he state shall within a reasonable time before trial, furnish in writing to the defendant a statement of the acts or offenses it intends to offer...." Id., 277 So.2d at 130. It also requires that as a "(p)rerequisite to the admissibility of the evidence is a showing by the state that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting the defendant's bad character or his propensity for bad behavior...." Id.

Whether or not he knew that the vibrator apparatus had been seized by the authorities, counsel had no reason to move to exclude evidence of other crimes until the state filed its notice of intent on January 4. Given the lateness of that notice, counsel's motion to suppress (exclude) the evidence on Prieur grounds, and put the state to its burden of proving the admissibility of other acts involving the same victim, was surely not untimely. Nevertheless, the evidence was admissible, and the defense can show no specific prejudice arising out of the trial court's failure to conduct a pre-trial hearing. In State v. Acliese, 403 So.2d 665 (La.1981), this Court upheld the trial court's admitting evidence of prior sexual assaults by defendant on the victim to show his lustful disposition toward her. This Court reviewed Louisiana jurisprudence on this issue and said:

"Evidence of other crimes related to the offense with which a defendant is charged is inadmissible except under special exceptions. Aside from related offenses admissible as part of the res gestae and convictions admissible for impeachment purposes, Louisiana's statutes provide for three exceptions-acts relevant to show intent, knowledge or system. La.R.S. 15:445, 446. Louisiana courts have recognized certain other exceptions, including the admissibility of prior sex crimes committed against the same prosecutrix. State v. Morgan, 269 So.2d 286 (La.1974), and citations therein.

Therefore, the merits of defense counsel's pretrial contention, that these other acts would unduly prejudice the jury, do not appear to merit consideration.

Counsel also urges...