State v. Clark

• Decision Date: 23 June 1980
• Docket Number: No. 66573,66573
• Parties: STATE of Louisiana v. Colin CLARK.
• Court: Louisiana Supreme Court

Page 1124

387 So.2d 1124

STATE of Louisiana v. Colin CLARK.

No. 66573.

Supreme Court of Louisiana.

June 23, 1980.

Dissenting Opinion July 30, 1980.

Rehearing Denied Sept. 12, 1980.

Concurring in Part and Dissenting Opinion Nov. 4, 1980.

See 389 So.2d 1335.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appellee.

M. Michelle Fournet, Asst. Public Defender, J. J. McKenzie, Baton Rouge, for defendant-appellant.

MARCUS, Justice.

Colin Clark was indicted by the grand jury for the first degree murder of Fred Schmidt on July 15, 1978, in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt. The matter was submitted on the evidence of the trial on the issue of guilt without introduction of other evidence. The jury unanimously recommended that a sentence of death be imposed on defendant. The trial judge sentenced defendant to death in accordance with the recommendation of the jury. On appeal, defendant relies on twenty-seven assignments of error for reversal of his conviction and sentence.¹

FACTS

On Saturday, July 15, 1978, at 1:59 a. m., a burglar alarm was set off at the Red Lobster Inn in Baton Rouge, Louisiana. Police arrived at the Inn at 2:05 a. m. and upon entering found the body of Fred Schmidt, the assistant manager of the restaurant. Schmidt had been stabbed approximately thirty to thirty-five times and had been shot once. A pathologist testified that the knife wounds were delivered before the shooting, which produced instant death. Two of the knife wounds would otherwise have been fatal. Found next to the body was a butcher knife that according to the pathologist could have been the knife used. A ballistics expert testified that the bullet found was fired from a .38 caliber revolver. Also found at the scene were spots of blood of the same type as that of defendant, two band-aid wrappers and an entry in the manager's log reading "Colin walked out, S.O.B." A metal strongbox, approximately $1,800.00 and two bottles of Chivas Regal scotch were missing.

Defendant had been employed as a waiter at the Red Lobster and had quit earlier that evening. A waitress at the restaurant testified that defendant and the victim had an argument that evening. Three witnesses testified they saw defendant's car at the restaurant or several blocks away driving toward the restaurant immediately prior to the crime. Two of these witnesses also testified they saw two persons in the car. One witness testified a friend with her shouted, "Hey, Colin," when the car passed and the passenger in the car stuck his arm out of the window and waved.

Two of defendant's roommates, Linda Pittman and Rod Reid, testified they were in bed in their room at 4:00 or 4:30 a. m. when defendant and their other roommate, Michael Glover, returned home. Defendant shut the door to Pittman and Reid's room, telling them he had a couple of lady friends with him. When they heard unusual shuffling noises, Pittman and Reid left their room to investigate. Defendant and Glover were packing their belongings. Defendant's hand was badly cut and, according to Pittman, had band-aids on it. Pittman noticed an unusually large number of bills in Glover's wallet. At about 5:30 a. m., after consuming a bottle of Chivas Regal scotch they had brought in with them, defendant and Glover departed, telling Pittman and Reid that if anyone asked, they should say that defendant and Glover left for San Francisco, California, two days before. After they left, Pittman and Reid noticed that a metal strongbox they had seen during the packing was gone. Furthermore, Pittman and Reid both testified defendant owned a knife like that found at the scene of the crime and Glover owned a .38 caliber revolver, the same type of gun as that used in the murder. Glover was arrested in New York City; defendant was arrested in San Diego, California; his car was found in Tallahassee, Florida.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in denying his objection to the one thousand dollar limitation placed on the amount he was allowed to expend in his defense. He argues that, due to this limitation, he was unable to hire an investigator and to locate and procure for trial a certain material witness.

On August 3, 1979 (Friday), defendant filed a motion for a continuance due to the "unavailability of necessary out-of-state witnesses." Trial was set for Monday, August 6, 1979. Defendant had been arraigned and counsel appointed some six months earlier. Attached to the motion was an affidavit of counsel which stated that, despite due diligence and effort of counsel, it had only recently come to his attention that the testimony of Dr. Francis H. Hoffman of Mobile, Alabama, was required. The affidavit continued by stating that Dr. Hoffman, a psychiatrist, "would possibly be a necessary defense witness" and that it was "believed by the defense" that he would testify that the crime charged was outside of the personality and psychological makeup of defendant. Counsel further stated that he learned of Dr. Hoffman approximately two weeks before trial.

Immediately prior to the commencement of trial, defense counsel admitted that he had not contacted Dr. Hoffman about his possible testimony. The testimony of another doctor, whose absence was also alleged as a basis for the continuance, was stipulated by agreement of counsel. The trial judge denied the motion for a continuance. Prior to the calling of the first witness, defendant lodged an objection to the dollar limitation placed on the amount he was allowed to expend in his defense. The trial judge noted his objection.

La. Code Crim.P. art. 738 provides that each defendant shall be allowed to summon twelve witnesses at the expense of the parish at the trial of a felony case. If a defendant is indigent and unable to pay for witnesses desired by him in addition to those summoned at the expense of the parish, art. 739 provides for a method by which he may apply to the court for the additional witnesses.

In the instant case, defendant called only one witness at trial. Dr. Hoffman could have been subpoenaed at the expense of the parish. Despite the fact that Dr. Hoffman's whereabouts was known to defendant at least two weeks prior to trial, no attempt was made to subpoena him.

In State v. Madison, 345 So.2d 485 (La.1977), we stated that when an indigent defendant shows that his attorney is unable to obtain existing evidence crucial to the defense, the means to obtain it should be provided for him, and if the indigent defender system cannot defray the expense, the state ought to supply the funds. There, however, we held that defendant did not make a sufficient showing of need to justify the procurement of an investigator. Similarly, in the instant case we find defendant made an insufficient showing that the dollar limitation placed on his defense and the lack of a private investigator prevented him from obtaining existing evidence crucial to his defense. The trial judge did not err in denying defendant's objection.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 13

Defendant contends the trial judge erred in charging the jury with the law of conspiracy, over defendant's objection, when defendant had not been charged with the crime of conspiracy.

La.R.S. 14:26 defines the offenses of conspiracy as follows:

Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.

If the intended basic crime has been consummated, the conspirators may be tried for either the conspiracy or the completed offense, and a conviction for one shall not bar prosecution for the other.

A criminal conspiracy to commit any given offense is an inchoate crime, separate and distinct from the completed criminal conduct. However, when a defendant is on trial for the completed offense and the facts of the case establish the existence of a conspiracy, reference to the law of conspiracy may be relevant and permissible to allow the state to take advantage of the evidentiary rules found in La.R.S. 15:455, which provides:

Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.

Therefore, if the state did in fact establish a prima facie case of conspiracy, the trial judge's charge to the jury as to the law of conspiracy was proper as the law applicable to the case. La. Code Crim.P. art. 802; State v. Matthews, 354 So.2d 552 (La.1978); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Bennett, 341 So.2d 847 (La.1976); State v. Kaufman, 331 So.2d 16 (La.), cert denied, 429 U.S. 981, 97 S.Ct. 495, 50 L.Ed.2d 591 (1976); State v. Carter, 326 So.2d 848 (La.1975); State v. Brown, 326 So.2d 839 (La.1975), cert. denied, 429 U.S. 918, 97 S.Ct. 310, 50 L.Ed.2d 284 (1976).

The type of proof necessary to establish a conspiracy may be direct or circumstantial evidence. State v. Sheppard, supra; State v. Kaufman, supra. In State v. Carter, supra, we held that, when the only showing of conspiracy is that two people committed a crime, and there is no showing that defendant either committed or conspired to commit...