State v. Broussard

• Decision Date: 18 April 1990
• Docket Number: No. CR,CR
• Citation: State v. Broussard, 560 So.2d 694 (La. App. 1990)
• Parties: STATE of Louisiana v. Leeroy John BROUSSARD, Jr. 89-386. 560 So.2d 694
• Court: Court of Appeal of Louisiana

Page 694

560 So.2d 694

STATE of Louisiana v.Leeroy John BROUSSARD, Jr.

No. CR 89-386.

560 So.2d 694

Court of Appeal of Louisiana Third Circuit.

April 18, 1990.

Emile Carmouche, Crowley, for defendant-appellant.

Glenn Foreman and Robert Cline, Asst. Dist. Attys., Crowley, for plaintiff-appellee.

Before GUIDRY, DOUCET and KING, JJ.

GUIDRY, Judge.

The defendant, Leeroy John(Chubby) Broussard, Jr., was indicted by an Acadia Parish grand jury on March 30, 1987 for the February 28, 1987, first degree murder (La.R.S. 14:30) of his fifteen year old wife, Sheila Gallet Broussard.On December 2, 1988, after a four day trial, a twelve person jury returned a responsive verdict of guilty of second degree murder, a violation of La.R.S. 14:30.1.In accordance with that statute, the trial judge, on January 11, 1989, sentenced defendant to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence.

Defendant appeals his conviction and sentence specifying nine assignments of error of which assignments number 2, 3, 4, 6, 7 and 8 have not been argued and are, therefore, considered abandoned.State v. Dewey, 408 So.2d 1255(La.1982).

FACTS

In the late night hours of February 27 and/or the early morning hours of February 28, 1987, defendant became involved in an argument with family members over the volume of a stereo defendant was playing.As the next morning was a school day and defendant had younger brothers and sisters who were sleeping, his parents requested defendant lower the volume.Each time the senior Broussards made this request, defendant increased the volume.Finally, this verbal bickering escalated into a physical altercation wherein defendant smashed some records and the stereo on the floor, shoved his mother and threw his father on the floor and straddled him in a threatening manner.

At this point, Shawn LaValley, who was living in the Broussard home and dating Samantha Broussard, defendant's sister, grabbed Chubby and tried to pull him off of his (defendant's)father.As Shawn attempted to restrain and calm Chubby, the senior Mrs. Broussard (Nola) gathered the occupants of the home and fled to the family automobile.

Once the family had exited the house, Shawn released Chubby and followed Nola, Sheila, Samantha and the two younger Broussard children to the car, intending to drive to a neighbor's home for safety.Chubby followed cursing and threatening to kill both Sheila and Shawn.Unfortunately, the car would not start and, as Chubby approached the vehicle, the occupants, fearing for their safety, locked the car doors.This further infuriated defendant and he grabbed an eighteen inch pipe wrench and began to beat on the car yelling, "I'm going to kill all you f------".

Defendant broke the windows on the passenger's side and proceeded around to the driver's side, denting the car and breaking the back driver's side window.As he attacked the driver's window, all the occupants except Shawn fled from the car to the house.

At trial Shawn testified that Chubby wouldn't let him out of the car, repeatedly stating he was going to kill him.When Chubby jumped on the hood of the car and began attacking the windshield with the pipe wrench, Shawn jumped from the car and started to run away from the house.LaValley stated that the defendant chased him up the driveway to the property line before abandoning pursuit.LaValley further stated that during the entire car attack incident, Leeroy, Sr., defendant's father, merely stood by and watched, apparently fearful of his own safety.

Shawn LaValley testified that after escaping the defendant's attack, he continued to run to the home of a neighbor, George Perry, some twenty minutes away.After awakening Perry, LaValley notified the Acadia Parish Sheriff's Department of the trouble at the Broussard home.

Meanwhile, the occupants of the car had taken refuge in the back bedroom of the Broussard home.At this point, the testimony is unclear.Either Sheila Broussard voluntarily went into the front room to try and talk to her husband or was forced into the front room by defendant.In any event, defendant began hitting the victim with his fists.Leeroy, Sr. yelled for his son to stop hitting his wife, but this only provoked defendant further.Chubby kicked in the rear bedroom door, the pipe wrench in one hand and a shiny object (later identified as a knife) in the other and threatened to kill his younger siblings.

Nola Broussard stated that as Chubby exited the rear bedroom he threw the wrench.On the night of the murder, she said he hit Sheila in the back with the throw.Later, she claimed it was Leeroy, Sr. who was struck.In any event, the incident in the rear bedroom so frightened the family that they fled out of a rear door to seek refuge in a field behind the house.As they exited the house, Leeroy, Sr., Nola and Samantha all saw the defendant kneeling over his wife, beating her.Nola testified that, as she ran out the back door, she heard Sheila yell, "Help me, Mr. Leeroy".

Leeroy, Sr. testified that, as they lay in the field hiding, Chubby came out of the back door, with the shiny object in his hand, looking for the family.As he searched, he said, "... son-of-a-bitch, I'm going to get you all".

When he was unable to find the family, Chubby returned to the house.The Broussards remained huddled in the rain, in the field, until they were able to identify police officers on the scene.

Deputies Danny Wimberly and Brandon Boudreaux answered LaValley's call to the Acadia Parish authorities.Upon their arrival at the Broussard home, the deputies observed the battered Broussard car, lights burning in the Broussard home, but no sign of anyone about.The deputies knocked on the screened porch door and identified themselves.They received no response so they crossed the porch to a screened front door where once again they knocked and called out.

As Deputy Wimberly was attempting to establish contact with anyone within, he observed a great quantity of blood on the living room floor.Looking further, Wimberly was also able to observe a white female thrashing about in a pool of blood.

Deputy Wimberly immediately told Deputy Boudreaux to call for an ambulance and entered the residence to try and aid the victim.Upon entering, Deputy Wimberly was then able to see the defendant stretched out, face down on the sofa, apparently asleep.No one else was found in the house.

Louisiana State Police TrooperJames Simon, a trained Emergency Medical Technician (EMT), who had heard the call for an ambulance, arrived within minutes to assist.His arrival was followed by an Acadian Ambulance unit.Neither the trooper nor the Acadian Ambulance EMT's were able to save the victim who died at the scene.

The autopsy established that the victim died from four severe blows to the left side of her head, two of which fractured (and punctured) her skull.The examination further revealed the victim had suffered nonlethal stab wounds to the head, face, neck and palm of the left hand.The coroner testified that the latter wounds would indicate the victim had been attempting to protect herself when they were inflicted.

ASSIGNMENT OF ERRORNO. 1

By his first assignment of error, defendant argues that the trial court erred in refusing to grant his motion to quash.

Initially, it should be noted that defendant's motion to quash was filed on November 28, 1988, the day prior to trial on the merits.The trial court declined to consider defendant's motion to quash inasmuch as the last day defendant had to file pre-trial motions was October 12, 1988.The trial judge was correct in his ruling unless the grounds for the motion fell under an exception outlined in La.C.Cr.P. art. 535.Defendant argues that La.C.Cr.P. art. 535(A)(1) is applicable.That article reads in pertinent part as follows:

"A.A motion to quash may be filed of right at any time before commencement of the trial, when based on the ground that:

(1) The offense charged is not punishable under a valid statute; ..."

In support of this contention defendant urges that the bill of indictment does not specify any aggravating circumstances which defendant was alleged to have done which made his conduct first degree murder.Further, defendant argues that this specification was necessary in light of the 1979legislative amendment to La.R.S. 14:30 which added the requirements of an aggravating element as essential to constitute the charge of first degree murder.

We find no merit to defendant's argument.The Louisiana Supreme Court has stated:

"C.Cr.P. 465(A)(31) provides that the proper short form indictment for first degree murder is 'A.B. committed first degree murder of C.D.'Section B provides that the short form indictment 'may also include a statement of additional facts pertaining to the offense charged.If this is done it shall not affect the sufficiency of the specific indictment form authorized by this article.' "

State v. Neslo, 433 So.2d 73(La.1983), at 81, 82.

In State v. Kohler, 434 So.2d 1110(La.App. 1st Cir.1983), our brethren of the First Circuit, with whom we agree, stated:

"Our constitution provides that an accused shall be informed of the "nature and cause" of the accusation against him.La. Const. of 1974, art. I, Sec. 13.This constitutional provision is given force and effect by La.C.Cr.P. art. 464 which provides in part:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.

La.C.Cr.P. art. 465 authorizes the use of specific short form indictments in charging certain offenses, including first degree murder.The constitutionality of this short form scheme has been consistently upheld and will not be questioned here.State v. Baylis, 388 So.2d 713(La.1980);State v. Liner, 373 So.2d 121(La.1979).As stated in the comments to article 465 of the Code of Criminal Procedure:

The basic function of the...