State v. Brown
| Decision Date | 18 May 1981 |
| Docket Number | No. 80-KA-2402,80-KA-2402 |
| Citation | 398 So.2d 1381 |
| Parties | STATE of Louisiana v. Curtis J. BROWN. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leander Perez, Jr., Dist. Atty., Frank Klein, Gilbert V. Andry, III, Asst. Dist. Attys., for plaintiff-appellee.
George C. Ehmig, Gretna, for defendant-appellant.
*
Curtis Wayne Brown was charged by a bill of information with attempted first degree murder of Gauthier, a deputy sheriff, in violation of LSA-R.S. 14:27, 30. He was tried by a jury of twelve on April 1, 1980 and found guilty as charged. The trial judge sentenced Brown to 40 years at hard labor. On appeal defendant relies upon three assignments of error as grounds for reversal of his conviction and sentence.
On the morning of March 27, 1978 the defendant and Tommy Williams went from their home in Algiers, La., in a 1974 Ford Thunderbird to Empire, La., looking for a job. Defendant was driving the automobile and Williams was riding on the right front seat. On their return trip to Algiers, in the vicinity of Belle Chase, La. Gauthier in a marked Plaquemines Parish Sheriff's Office vehicle stopped defendant for speeding. Deputy Gauthier got out of his automobile and started walking towards the parked Thunderbird, and as he reached a point very close to the left rear of the Thunderbird he observed a shotgun sticking out of the driver's window pointed at him and held by defendant. As he observed the gun it appeared to him that defendant was attempting to fire it but that it misfired, whereupon Gauthier turned and ran at which time he was shot in the right shoulder. He ran and jumped into a ditch which lay in the neutral ground between the double-laned highway, drew his revolver, and fired six times at the Thunderbird as it sped away. After the vehicle had traveled a short distance it stopped and defendant and Williams left the car and ran across the levee and soon thereafter were apprehended.
All three of defendant's assignments of error are based upon events which occurred at trial that refer directly to crimes that defendant had committed other than the one for which he was being tried, which he contends was contrary to the provisions contained in the Louisiana Code of Criminal Procedure Article 770, which provides in pertinent part as follows:
There are exceptions to the prohibition of reference to other crimes set forth in La.C.Cr.P. art. 770. Included among those exceptions are related offenses admissible as part of the res gestae, convictions admissible for impeachment purposes, evidence tending to show intent, knowledge, or system as authorized by LSA-R.S. 15:445-446. The evidence of other crimes is also admissible to establish motive for the commission of the crime charged. State v. Sutfield, 354 So.2d 1334 (La.1978); State v. Walker, 394 So.2d 1181 (La.1981). Reference to the crime of conspiracy may be made when a prima facie case of conspiracy has been established. LSA-R.S. 15:455.
ASSIGNMENT OF ERROR # 1
The State during their interrogation of Jim Churchman, a criminalist with the Louisiana State Police, asked Mr. Churchman if the shotgun used to shoot Gauthier was a standard 410 gauge shotgun. Churchman responded to the question stating the weapon had been rendered illegal by two features. Defense counsel at this point moved for a dismissal urging that the evidence of the illegality of the sawed-off shotgun was evidence of other crimes prohibited by La.C.Cr.P. Art. 770. Churchman testified that the barrel of the gun was only 81/2 long and its overall length was only 20 .
Possession of a shotgun with a barrel less than 18 in length or one with an overall length of less than 26 which has not been properly registered is prohibited by LSA-R.S. 40:1781 et seq.
The use of the sawed-off shotgun was a necessary incident of the criminal act charged of attempted first degree murder. It was inseparably entwined in the criminal conduct charged, and therefore the evidence about the length of the barrel of the gun and the overall length of the gun which established that the possession of it was prohibited without proper registration, was admissible as part of the res gestae. See State v. Williams, 375 So.2d 364 (La.1979); State v. Tornabene, 337 So.2d 214 (La.1976).
The defendant contends that the trial judge erred in denying his motion for mistrial based upon the prosecutor's interrogation of Charles Isbel, a used car dealer, who testified that the vehicle driven by defendant at the time Gauthier was shot had been stolen from his used car lot. Defendant objected to this testimony and moved for a mistrial arguing that the inquiry called for evidence of another crime other than the one for which defendant was being tried. Theft of an automobile is prohibited by LSA-R.S. 14:67.
Evidence that defendant had stolen the Thunderbird which he was operating is admissible as an exception to La.C.Cr.P. art. 770 because it establishes motive on the part of defendant to commit the crime charged. Motive has been defined as a reason the accused has for committing the charged offense. Motive is the cause or reason that moves the will and induces action for definite result. State v. Abercrombie, 375 So.2d 1170 (La.1979).
Defendant, the admitted driver of the Thunderbird, under normal circumstances would have no reason to have shot at the officer who was stopping him on a speeding charge, the punishment for which would probably have only been a fine. Defendant denied shooting the officer. He testified the officer was shot by Williams. It therefore became important to the State's case to establish a reason why defendant would have fired the shot. If defendant had stolen the automobile, a crime for which he could be sent to prison for many years, it was most important for him to avoid having the crime discovered, a very likely probability in the event he was arrested on the speeding charge. Proof that defendant had stolen the vehicle establishes a motive for defendant to fire upon the officer in order to avoid being arrested on the speeding charge.
In order for the evidence on the car theft to be admissible, the state must comply with the following requirements of State v. Prieur, 277 So.2d 126 (La.1973), 1 which are (1) there must be clear and convincing evidence that the theft had been committed by defendant, (2) the other crime must be relevant for some other purpose than to show a probability that defendant committed the crime on trial because he is a man of criminal character, (3) the other crime does tend to prove a material fact genuinely at issue, (4) the probative value of the crime of theft of the vehicle outweighs its prejudicial effect. See State v. Walker, supra.
The testimony of the used car dealer to the effect that the Thunderbird in which defendant was riding at the time the officer was shot had been stolen from his lot, while proving theft, fails to prove defendant's connection with the theft. However, defendant took the stand and his counsel elicited testimony from him that he had seen the Thunderbird parked under a bridge with the keys in it for three days and that he decided to take possession of the vehicle and take a joy-ride in it. The testimony of defendant, along with the evidence produced by the State of the theft, provides clear and convincing evidence that theft had been committed and defendant's connection with it.
The fact that defendant denied he fired the gun at the officer creates a genuine issue as to whether he did in fact fire it and makes the...
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