State v. Bruce

• Decision Date: 30 October 2012
• Docket Number: No. 11–KA–991.,11–KA–991.
• Parties: STATE of Louisiana v. Benjamin H. BRUCE.
• Court: Court of Appeal of Louisiana — District of US

102 So.3d 1029

STATE of Louisiana

v.Benjamin H. BRUCE.

No. 11–KA–991.

Court of Appeal of Louisiana, Fifth Circuit.

Oct. 30, 2012.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Kellie M. Rish, Matthew Sherman, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.

Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.

FREDERICKA HOMBERG WICKER, Judge.

[5 Cir. 2]In this criminal proceeding, defendant appeals his sentence to life imprisonment and further assigns as error the trial court's denial of his motion to quash the bill of information. We affirm defendant's conviction but vacate his life sentence, finding it constitutionally excessive, and remand this matter to the trial court for resentencing.

STATEMENT OF THE CASE

On October 14, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, Benjamin Bruce, with aggravated arson in violation of La. R.S. 14:51. Defendant pleaded not guilty at arraignment. On March 22, 2011, the matter proceeded to trial and a 12–person jury returned a verdict of guilty as charged of aggravated arson.

[5 Cir. 3]On April 4, 2011, the trial court sentenced defendant to fifteen years imprisonment at hard labor, the first two years to be served without benefit of parole, probation, or suspension of sentence. On that same date, the state filed a multiple offender bill of information alleging defendant to be a fourth felony offender. On June 2, 2011, the trial court found defendant to be a fourth felony offender, vacated his original sentence, and imposed an enhanced sentence of life imprisonment at hard labor. This timely appeal follows.

FACTUAL BACKGROUND

Ms. Pinkey Miles resided in a trailer located at 623 Richard Avenue in River Ridge, Louisiana, with her sixty-five year-old mother, Barbara Brown, and her seventeen year-old son, Kendrick Miles. On the afternoon of August 26, 2010, Ms. Miles played a game of cards and had a few drinks with neighbors. Ms. Miles testified that her ex-boyfriend, defendant, later arrived to play and that she asked him to return ten dollars she had previously loaned him. When defendant refused to pay the ten dollars, Ms. Miles punched defendant in the face and left.¹ Ms. Miles eventually returned home and, sometime after midnight, Ms. Miles, her mother and her son fell asleep.

A few hours later, two unknown individuals broke down the gate outside of Ms. Miles' trailer, pushed a window air conditioning unit through the window, and yelled into the trailer, “Ya'll house is on fire. Ya'll house is on fire.” Ms. Miles ran out of the trailer and extinguished the fire while her son, Kendrick, helped his grandmother, Ms. Brown, exit the trailer safely.

At trial, Ms. Danielle Lathers, a neighbor-witness, testified that she observed defendant and Ms. Miles in a heated dispute on the evening of August 26, 2010, [5 Cir. 4]regarding an unpaid debt and witnessed Ms. Miles strike defendant in the face. Ms. Lathers further testified that she and her boyfriend, while sitting on her porch at approximately 3:30 a.m., noticed defendant's pick-up truck traveling down the road to Ms. Miles' trailer. Ms. Lathers and her boyfriend walked to the corner and noticed defendant exit the truck with something in his hand. Ms. Lathers testified that defendant walked to Ms. Miles' trailer and then walked back to his truck. A few minutes later, she noticed smoke coming from the trailer. Ms. Lathers did not contact police regarding the incident; she testified that defendant's actions involving Ms. Miles' trailer is not her “business.” Ms. Lathers further stated that she did not walk to Ms. Miles' trailer that evening to inform her of the smoke but instead retired to her home for the evening.

Investigator Thomas Lowe of the Jefferson Parish Fire Department, an expert in the field of fire origin and cause, testified that he arrived at the scene and determined that the fire began in the garden area and was ignited with an accelerant, gasoline.² Mr. Lowe further testified that the fire spread in a V-pattern from the garden area, “up to the top of the trailer.”

Deputy Latasha Thomas of the Jefferson Parish Sheriff's Office also reported to the scene. Ms. Miles told Deputy Thomas that she suspected her ex-boyfriend (defendant) could be responsible for the fire. Detective Steven Abadie of the Jefferson Parish Sheriff's Office later arrived and learned from Ms. Miles of a potential neighbor-witness, Ms. Lathers. Detective Abadie met with Ms. Lathers, who identified defendant by photograph as the perpetrator. Detective Abadie took Ms. Lathers' recorded statement. Having obtained defendant's address from Ms. [5 Cir. 5]Lathers, Detective Abadie proceeded to defendant's residence and arrested him for the aggravated arson of Ms. Miles' trailer.

Detective Abadie testified that he advised defendant of his rights and transported him to the police station, where defendant gave a recorded statement. In his statement, defendant told Detective Abadie that on the afternoon of August 26, 2010, Ms. Miles struck him in the face with a pair of brass knuckles over an unpaid debt of ten dollars. Defendant then admitted that in the early morning hours of August 27, 2010, he became intoxicated, poured gasoline on the flower bed in front of Ms. Miles' trailer, and set it afire.

DISCUSSION

In his first assignment of error, defendant asserts that the trial court erred in denying his motion to quash the bill of information. On the second and final day of trial ³, defendant filed a motion to quash the bill of information contending that it failed to properly inform him of the charge against him as required under La. C. Cr. P. art. 464 and the Louisiana Constitution of 1974, art. I, § 13. Specifically, defendant claims the indictment at issue is defective because it fails to allege foreseeability of endangering human life and fails to state that arson occurred to a structure, watercraft, or moveable as provided in La. R.S. 14:51.

The purpose of a bill of information is to inform a defendant of the nature and cause of the accusation against him as required by the Louisiana Constitution, art. I, § 13. State v. Stevenson, 02–769 (La.App. 5 Cir. 1/28/03), 839 So.2d 340, 345,writ denied,2003–0833 (La.10/31/03), 857 So.2d 472. The requirements of a bill of information are set forth in La. C. Cr. P. art. 464, which provides:

[5 Cir. 6]The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

State v. Michels, 98–608 (La.App. 5 Cir. 1/13/99), 726 So.2d 449, 451.

In the present case, defendant's charge is aggravated arson in violation of La. R.S. 14:51, which provides, “[a]ggravated arson is the intentional damaging by any explosive substance or the setting of fire to any structure, watercraft, or moveable whereby it is foreseeable that human life might be endangered.” La. C. Cr. P. art. 465 authorizes the use of short-form indictments in charging certain offenses. State v. Page, 08–531, p. 16 (La.App. 5 Cir. 11/10/09), 28 So.3d 442, 453,writ denied,2009–2684 (La.6/4/10), 38 So.3d 299. The Louisiana Supreme Court has consistently upheld the constitutionality of short-form indictments. Id. The crime of aggravated arson is chargeable by short form as follows:

A.B. committed aggravated arson of a dwelling (or structure, watercraft, or movable, as the case may be). If the words “belonging to another and with the damage amounting to _____ dollars” are added, simple arson will be included in the charge.

The Louisiana Supreme Court has specifically approved the use of this short-form indictment to a charge of aggravated arson. State v. Mason, 305 So.2d 523, 526 (La.1974).

In the present case, defendant does not claim that the alleged defective bill of information prejudiced his defense in any way.⁴ Rather, his allegation is that the bill of information is technically insufficient. The amended bill of information against defendant provides:

[5 Cir. 7]“Benjamin H. Bruce ... on the 27th day of August [2010] ... in the Parish [of Jefferson] ... violated R.S. 14:51 in that he did commit aggravated arson of 623 Richard Avenue, River Ridge, LA 70123 belonging to another Barbara Brown, and with the amount of damage being over $500.”

We find the bill of information in this case complies with the short form authorized by La. C. Cr. P. art. 465(A)(2). Accordingly, this assignment of error is without merit.

In his second assignment of error, defendant claims that his life sentence—the statutory maximum—as a fourth felony offender is constitutionally excessive. Defendant did not file a motion to reconsider sentence, nor did he state specific grounds upon which the motion would have been based. Defendant is, therefore, limited to a bare review of his sentence for constitutional excessiveness. State v. Hills, 03–716, p. 12 (La.App. 5 Cir. 12/9/03), 866 So.2d 278, 286,writ denied,2004–1322 (La.4/22/05), 899 So.2d 569;State v. Fairley, 02–168 (La.App. 5 Cir. 6/26/02), 822 So.2d 812, 814; and State v. Pettus, 10–777 (La.App. 5 Cir. 5/24/11), 68 So.3d 28, 30,writ denied,2011–1326 (La.12/2/11), 76 So.3d 1176reconsideration denied,2011–1326 (La.4/13/12), 85 So.3d 1236.

The trial court adjudicated defendant a fourth felony offender. As a fourth felony offender, defendant faced the following penalty as provided by La. R.S. 15:529.1(A)⁵:

(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be...