State v. Bourque

• Citation: 622 So.2d 198
• Decision Date: 01 July 1993
• Docket Number: No. 92-KA-0968,92-KA-0968
• Parties: STATE of Louisiana v. Scott Jude BOURQUE.
• Court: Supreme Court of Louisiana

Page 198

622 So.2d 198

STATE of Louisiana v. Scott Jude BOURQUE.

No. 92-KA-0968.

Supreme Court of Louisiana.

July 1, 1993.

Rehearings Denied Sept. 2, 1993.

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Thomas E. Guilbeau, Lafayette, for applicant.

Richard P. Ieyoub, Atty. Gen., New Orleans, Bernard E. Boudreaux, Jr., Dist. Atty., Franklin, John P. Haney, Haney, Akers, & Segura, New Iberia, for respondent.

KIMBALL, Justice ^*.

A St. Martin Parish grand jury indicted Scott Jude Bourque for the first degree murder of his estranged girlfriend, Charlotte Perry, in violation of LSA-R.S. 14:30. After trial by jury, the defendant was found guilty as charged and unanimously sentenced to death after two aggravating circumstances were found. The trial judge sentenced defendant to death in accordance with the recommendation of the jury. This is the direct appeal of his conviction and sentence.

On appeal, Bourque relies on seventy-seven (77) assignments of error for the reversal of his conviction and sentence, fifty-three (53) of which have been briefed. ¹

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Although we find no error was committed in the guilt phase of the trial, and affirm the defendant's conviction, we find an arbitrary factor may have been injected into the penalty phase of the trial, mandating that we vacate the sentence of death and remand for a new sentencing hearing.

FACTS

The following facts were adduced in the guilt phase of the defendant's trial. On March 17, 1990, Kenneth Perry received a telephone call from his twenty-eight year old daughter, Charlotte. Ms. Perry told her father the defendant had taken her from her place of employment, as he had done on a prior occasion. When he learned this, Mr. Perry drove to Scott Bourque's trailer in Kaplan, Louisiana, to retrieve his daughter and some of her belongings. Charlotte Perry and the defendant had had a prior relationship but had broken up a few months earlier.

When he arrived, Mr. Perry saw Ms. Perry outside the trailer and spoke to her briefly. The defendant approached and told the two Perrys he wanted them to accompany him to Holly Beach. When Mr. Perry declined, the defendant became abusive, using foul language toward Ms. Perry. The defendant threatened to kill Ms. Perry and her father.

The defendant continued to curse Ms. Perry and threatened to shoot both Perrys while he walked back to his trailer. He stated that if they left, he would burn all of Ms. Perry's belongings. After conferring with his daughter, and learning of her desire to retrieve a camera and dress the defendant had in his trailer, Mr. Perry walked up to the trailer. While talking to the defendant, Mr. Perry noticed the barrel of a gun held by the defendant. He told his daughter to get in his car, and the two Perrys drove away.

Terry Loignon, the owner of The Barn Lounge in Gueydan, Louisiana, saw the defendant in his bar about a month later, on the evening of April 15, 1990. Loignon first saw the defendant in the bar between 9 p.m. and 10 p.m. Loignon knew the defendant owned a nickel-plated 9 MM pistol and a shotgun, and he saw the pistol in the defendant's possession that night. Cheryl Oberg, the bartender at The Barn Lounge that evening, served the defendant a single shot of Tequila around 10 p.m. Both Loignon and Oberg observed the defendant was speaking and walking normally. The defendant left the bar at approximately 10 to 10:30 p.m.

April 15, 1990 was Easter Sunday and Theresa Stoute, her daughter Charlotte Perry, her oldest son Kenny Paul Perry, and her friend Carroll Romero were at her residence in St. Martinville, Louisiana in the early evening. Ms. Perry had lived at home since January 30, 1990.

While eating dinner about 7:30 p.m., the telephone rang. Because Ms. Perry had been receiving threatening calls from the defendant, Mrs. Stoute routinely answered the phone. When Mrs. Stoute answered the call, the defendant told her, "Ms. Perry, tell Charlotte I love her and I love you." Mrs. Stoute told the defendant she would do so and hung up the phone.

Later, as the family cleaned up the kitchen, the phone rang again. This time the defendant told Mrs. Stoute, "Ms. Perry, tell Charlotte I love her very much and this is the last day of my life." The defendant had said similar things in the past to Mrs. Stoute. Ms. Perry seemed distressed after being told of the call.

Kenny Paul Perry left the house between 10 p.m. and 10:30 p.m. that evening. Ms. Perry took a bath while her mother and Carroll Romero went into a bedroom to watch television. At approximately 11 p.m., Ms. Perry's seventeen year old brother, Michael, came home. Mrs. Stoute talked to her two children in the kitchen, but soon returned to the bedroom where she fell into a light sleep.

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Soon thereafter, Michael Perry moved to answer a knock at the back door while Ms. Perry, who was in a nightgown, began to walk down the hall. The defendant was at the door. Without saying a word to Michael, the defendant walked past him toward the hall where he saw Ms. Perry. Michael saw the defendant had a shotgun with a pistol grip and heard him command, "Charlotte, come here."

Michael grabbed his keys, closed the door, and ran outside to get help. He drove his car to a nearby police station and told the officer on duty that there was a man with a gun in his house who would probably use it. After relaying his address, Michael jumped back in his car to go home.

Meanwhile, Mrs. Stoute was awakened from her light sleep by scrambling sounds in the hallway in front of her room. She opened her bedroom door and saw the defendant pulling her daughter down the hall. Mrs. Stoute yelled at the defendant that he couldn't do this to her daughter, then grabbed on to Ms. Perry and tried to keep the defendant from taking her. Because the two women were smaller, the defendant pulled both women down the hall and into the den.

As the group passed the kitchen counter and entered the brighter light of the kitchen, Mrs. Stoute was able to see a shotgun in the defendant's right hand and that his finger was on the trigger. Mrs. Stoute looked at the defendant just as he raised the shotgun, placing it at Mrs. Stoute's throat.

Acting instinctively, Mrs. Stoute grabbed the barrel of the shotgun and pushed it away toward her shoulder, as the defendant pulled the trigger. Mrs. Stoute heard her daughter scream while she was spun around by the blast, falling face down on the floor. Right before the defendant pulled Ms. Perry out of the door, Mrs. Stoute heard her say, "No, Scotty, no, no, I don't want to go." Mrs. Stoute, still conscious, tried to rise from the floor to follow but was unable to do so. When she turned her head and looked at her left hand, she saw her thumb had been shot off. She believed she was going to die.

Awakened by the noise in the hall and the shotgun blast, Carroll Romero walked down the hall to find Mrs. Stoute face down and bleeding on the floor. He saw the defendant's back retreating out the back door and although he could hear Ms. Perry, he could not see her. Romero did not know if Mrs. Stoute was alive until she spoke, telling him the defendant had shot her and had taken her daughter. Romero told Mrs. Stoute not to get up because she was bleeding and called an ambulance. He ran into the kitchen and brought back a kitchen towel to wrap her hand; he also obtained a blanket because Mrs. Stoute was shivering. Because Mrs. Stoute also feared for her son, Michael, whom she had not seen, Romero walked to the edge of the porch.

From that vantage point, Romero saw the defendant trying to force Ms. Perry toward his white, Chevy Corsica four-door sedan. Ms. Perry was fighting back to keep from going into the car, all the while begging the defendant to let her go. Romero reentered the house and called Ms. Perry's grandfather. He then heard a shot and went outside.

Michael Perry, who had just returned from the police station and had parked his car directly across the street from his house, saw the defendant just as he was forcing Ms. Perry out of the house. Michael saw his sister resisting the whole way. When they were about 10 feet from the defendant's car, the defendant could force Ms. Perry to go no further. At that point, the defendant let Ms. Perry go and shot her with his 9 MM pistol. Michael exited his car and started toward his sister. When the defendant looked over at the brother, Michael retreated back to his car. As soon as Michael retreated, the defendant walked back to Ms. Perry, raised the pistol, and shot her three more times as she lay on the ground. The defendant then ran to his car, put the two weapons in the back seat, and sped away.

By the time Romero came outside again, the defendant was walking back to Ms.

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Perry. Romero saw the defendant use both hands to point the pistol and shoot the victim as she lay on the ground. He saw the defendant speed away and noticed Michael Perry standing across the street.

Inside the house, Mrs. Stoute heard a shot, then three more shots. At the time, she believed the defendant had killed her children, Charlotte and Michael. Romero ran back into the house to comfort her.

Michael got into his car and followed the defendant to obtain the license number of the car the defendant was driving. He stopped at a gas station to write the number down, then went to his grandfather's house to tell him what had happened. After that, Michael drove home and found police officers at the scene.

Patrol Officer Cheryl Degeyter of the St. Martin Parish Sheriff's Office was the first officer on the scene. She checked Ms. Perry and found no pulse. After entering the house, she found Mrs. Stoute lying face down and called for an ambulance. When Michael came in, she questioned him. As a result of this information, she secured an arrest warrant for Scott Bourque.

Other sheriff's officers arrived. The crime scene was secured and Mrs. Stoute was transported by ambulance to the hospital. Spent shell casings were retrieved from the area around Ms....