State v. Clark, 53861

• Decision Date: 14 January 1974
• Docket Number: No. 53861,53861
• Citation: 288 So.2d 612
• Parties: STATE of Louisiana, Appellee, v. Floyd James CLARK, Appellant.
• Court: Louisiana Supreme Court

Page 612

288 So.2d 612

STATE of Louisiana, Appellee, v. Floyd James CLARK, Appellant.

No. 53861.

Supreme Court of Louisiana.

Jan. 14, 1974.

James C. Stevens, Ervin, Stevens & Waguespack, Baton Rouge, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Alton T. Moran, Asst. Dist. Atty., for plaintiff-appellee.

TATE, Justice.

The defendant Clark was convicted of simple burglary, La.R.S. 14:62, and sentenced to nine years at hard labor. On his appeal, he relies upon one bill of exceptions. The court has also noticed of its own motion a serious issue as to the validity of the bill of information charging him with the offense.

The Bill of Exceptions

The defendant perfected one bill of exceptions. This was with regard to the trial court's refusal to order a mistrial. The defendant moved for one after a remark by a police officer witness, under cross-examination by the defendant's counsel. This remark included an oblique reference to previous arrests of some 'subjects'.

The defendant contends that the reference was to 'another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible', La.C.Cr.P. art. 770(2), such as entitled the defendant to a mistrial if made by '(a) judge, district attorney, or other court official'. La.C.Cr.P. art. 770.

Although the defendant contends a mandatory mistrial is required by this provision, the jurisprudence has not considered a police officer witness as an 'other court official' so as to require such mandatory remedy under Article 770. Cf., State v. Smith, 285 So.2d 240 (La.Sup.Ct.1973), State v. Edgecombe, 275 So.2d 740 (La.Sup.Ct.1973), State v. Boudoin, 257 La. 483, 243 So.2d 265 (1971), and State v. Moreau, 200 La. 293, 7 So.2d 915 (1942). Thus, an admonition to the jury (at least if requested by the defendant) may suffice to cure such a prejudicial statement by a witness other than a court official, unless the court is satisfied that an admonition is not sufficient to assure the defendant a fair trial. La.C.Cr.P. art. 771.

In the present instance, an examination of the entire cross-examination of the officer by the defendant's counsel convinces us that the oblique reference did not require a mistrial.

The remark occurred in the course of a persistent attempt by the Defendant's counsel to establish that the officer in advance of the crime had told his police officer partner that the defendant and his companion were probably going to make a 'hit' (burglary) that night. The apparent effort was to prove that the police officer, who had seen the burglary and who had immediately thereafter arrested the defendant, had a preconceived notion that the defendant was guilty.

The answer now objected to was in reply to persistent questioning by the defense on the subject. It was not elicited by the State, nor was it deliberately uttered by a police witness to prejudice the defendant. The incidental and spontaneous remark contained in the reply was given only after the witness was repeatedly examined by the defendant's counsel with regard to a prior statement alleged to have been made by the witness at another hearing.

We thus do not find the remark of the witness so prejudicial as to require a mistrial under Article 771, since it was solicited by the defendant's counsel. Further, after the objection was made, the trial court admonished the jury to disregard any testimony which might indicate a prior record, since it could not be considered evidence of guilt of the offense with which charged.

Although the defendant's counsel did not then object to the admonition nor perfect a bill as to it, he now contends that this admonition, by emphasizing the thrust of the oblique reference by the witness, was itself so prejudicial as to require a mistrial. He contends that an admonition is only permitted under Article 771 when the defendant or the State requests it.

We do not find the admonition to be prejudicial. Further, although Article 771 Requires admonition when requested by the defendant or the State, it does not narrow the right of the trial judge to admonish the jury when he deems it necessary to protect the rights of the defendant.

We thus find no merit to the bill of exceptions urged.

The Bill of Information

The court notices of its own motion a serious question as to the sufficiency of the bill of information.

The defendant is charged with simple burglary. La.R.S. 14:62 (1972). ¹ The statute defines this, pertinently, as 'the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein * * *.'

The offense is one for which a shortform indictment is authorized by La.C.Cr.P. art. 465. The short form indictment so authorized is: 'A.B. committed simple burglary of the houseboat (or other structure, watercraft, or movable, as the case may be) belonging to C.D.'

The State instituted prosecution by a short-form indictment or information. However, in so doing, it did not specify the particular structure entered. It simply charged that '* * * Floyd James Clark . . . did violate R.S. 14:62 in that he committed simple burglary of the Movable belonging to Cathy A. Staff, located at 2286 Highland Road, Baton Rouge, Louisiana. * * *' (Italics ours.)

As the dissent in the present case points out, this deviation from the mandatory short form (by not specifying the particular structure but rather generically referring to the type of structure) raises, under the jurisprudence, an issue as to the validity of the indictment (information).

Article I, Section 10 of our State Constitution provides: 'In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him; * * *.'

This constitutional provision has until now been interpreted as requiring the indictment or information to state every essential fact of the offense with which charged. The indictment or information is regarded as the foundation of the prosecution and as the safeguard of the accused against being prosecuted for a non-crime or, on the contrary, against conduct so vaguely described as not to bar subsequent prosecutions (i.e., to undergo further jeopardy) for the same offense.

So fundamental has been regarded this foundation paper, that its validity will not be saved if the facts are supplemented by a bill of particulars or if, from the facts of the prosecution itself, any vagueness or insufficiency is dispelled. If the indictment or information is constitutionally invalid, the infirmity is not waived by the accused going to trial on it without objection, and, on appeal after conviction, the entire prosecution must be dismissed because of the invalidity of the indictment or information upon which this prosecution is based.

Among the recent decisions which have reaffirmed these jurisprudential holdings, dating from our earliest days as a state, are: State v. Spina, 261 La. 397, 259 So.2d 891 (1972); State v. Raby, 259 La. 909, 253 So.2d 370 (1971); State v. Butler, 259 La. 560, 250 So.2d 740 (1971). An important decision, State v. Straughan, 229 La. 1036, 87 So.2d 523 (1956), which invalidated as unconstitutional legislation designed to permit charging by name and article number of the offense, discusses the traditional reasons of fundamental safeguard of individual rights underlying this extremely technical line of jurisprudence.

The short-form indictment has withstood attack against the contention that it did not, as constitutionally required by Article I, Section 10, inform the defendant of 'the nature and cause of the accusation against him.' It did so, because of the requirement that, upon request of the defendant for a bill of particulars, the State must inform him of the essential facts constituting the offense with which charged.

See: State v. Wright, 254 La. 521, 225 So.2d 201 (1969); State v. Barnes, 242 La. 102, 134 So.2d 890 (1961); State v. Holmes, 223 La. 397, 65 So.2d 890 (1953); State v. Nicols, 216 La. 622, 44 So.2d 318 (1950); State v. Miller, 170 La. 51, 127 So. 361 (1930). See also Comment, 6 La.L.Rev. 78 (1944) and Note, 25 Tul.L.Rev. 121 (1950).

The jurisprudence thus holds that one charged by a short form is entitled to be furnished a bill of particulars furnishing him with:

'the essential facts constituting the offense charged', La.C.Cr.P. art. 464;

'further information, in a proper case, regarding what the State intends to prove, in order that, in fairness, the accused may more properly defend himself', State v. Wright, cited above, at 225 So.2d 203;

information 'setting out more specifically and in detail the offense charged. And this is particularly true (where the offense) may be committed in a number of different ways', State v. Mann, 250 La. 1086, 202 So.2d 259, 262 (1967);

a description of the offense "with such certainty as would enable the accused to plead the judgment that may be given on it in bar of another prosecution for the same offense", State v. Holmes, cited above, at 65 So.2d 891;

information 'setting forth more specifically the nature of the offense charged', State v. Nichols, cited above, at 44 So.2d 319;

information as to the nature and cause of the accusation 'necessary to enable the defendant to defend himself intelligently', State v. Brooks, 173 La. 9, 136 So. 71 (1931).

Official Revision Comment (b) to Article 465, which provides for short form indictments authoritatively notes that the defendant 'may procure details as to the alleged method of commission through a bill of particulars'.

Thus, in the instant case, the defendant by motion for a bill of particulars was entitled to learn just what movable (in this case, an automobile) he was charged with burglarizing. He did not so move. Nor did he prior to trial attack the sufficiency of the indictment (information), so as to permit its amendment if...