State v. Davis

• Decision Date: 27 February 1984
• Docket Number: Nos. 82-AW-2134,82-AW-2135,s. 82-AW-2134
• Citation: 448 So.2d 645
• Parties: STATE of Louisiana v. Mark D. DAVIS. STATE of Louisiana v. Bryan D. WINDHAM.
• Court: Louisiana Supreme Court

Page 645

448 So.2d 645

STATE of Louisiana v. Mark D. DAVIS.

STATE of Louisiana v. Bryan D. WINDHAM.

Nos. 82-AW-2134, 82-AW-2135.

Supreme Court of Louisiana.

Feb. 27, 1984.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Michael Bonnette, Asst. Dist. Atty., for plaintiff-appellee.

Thomas A. Wilson, Jr., Wilson & Veatch, Shreveport, for defendant-appellant.

DIXON, Chief Justice.

Defendants were charged with taking illegal deer, in violation of R.S. 56:123(E)(1). Windham was found guilty by the district judge. Davis then pleaded guilty, reserving his right to appeal. Both defendants received sentences of ninety days in jail, five hundred dollar fines, and had their rifles confiscated. Eighty of the ninety days were suspended, and the remaining ten days were to be served on three weekends. Applications were filed for writs, but review was granted as through the cases were here on appeal. 421 So.2d 912. The convictions and sentences are affirmed, except the confiscation of defendants' rifles, which is reversed.

During the early morning hours of December 29, 1981, a small group of deer hunters from Shreveport, of which group both defendants were members, took up stands in the Hall's Break area of Natchitoches Parish. Around daybreak, a larger group of local hunters arrived in the area with their dogs. The stands in which the Shreveport group had positioned themselves were the stands customarily used by the local group.

Defendant Windham, who was about twenty years old and already an experienced hunter, was waiting in his stand. The local group's dogs were running, and Reverend Hussar, a member of the Shreveport group, fired two shots into the air to excite the dogs. Defendant Windham, after hearing the shots and the dogs, spotted two doe and a spike buck running past him. He fired twice, and, due to the jamming of his weapon, fired a third time, into the air. When first spotted, the spike buck was only ten to fifteen yards away from defendant Windham, so he could tell that the deer at which he had shot had four to six inch spikes.

Since his shots had not killed the deer instantly, the deer kept running. After waiting a moment, defendant Windham began following the deer's trail. He said that he could find no trace of blood along the trail, and so he was not sure if he had hit the deer. He was discussing the events with his hunting companion, Eric Dice, when Coy Birdwell, a member of the local hunting group, came up the hill and asked who had shot. Defendant Windham responded that he had shot at a spike buck, so Mr. Birdwell went back down the hill where his companions were waiting.

Members of the local group then spotted an injured doe, which was stumbling through the woods. Their dogs also spotted the deer and were "all over it." Mark Stewart of the local group saw that the deer was in agony, so he fired one shot into the deer's neck to put it out of its misery. After Mr. Stewart killed the doe, the group returned up the hill, yelling at defendant Windham that he had shot a doe, and not a spike buck. The group, led by Mr. Birdwell, placed defendant Windham under citizen's arrest. The entire group then went down the hill.

While the group was standing around, defendant Davis came down the hill, "boasting" that he, too, had shot a doe. Coy Birdwell radioed to Vernon Birdwell, who, in turn, notified the Department of Wildlife and Fisheries of the doe shooting incidents. Agent Carson arrived at the scene, responding to a call concerning the taking of illegal deer. When he arrived, he identified himself as an agent with the Louisiana Department of Wildlife and Fisheries. He asked the group, in general, who shot the deer. Both defendants readily admitted that they had done the shooting. Agent Carson asked defendants for their identifications and licenses. At this point, no one was placed under formal arrest by Agent Carson. They proceeded to the body of the first deer and Agent Carson allowed defendant Windham to use his knife to gut the deer in order to avoid spoilage. In the meantime, some of the other hunters went looking for the body of the deer defendant Davis said he killed, but were unable to find it. Defendant Davis said that he knew where it was, and Agent Carson allowed him to go with the hunters to find the deer. After the second doe was gutted, both were placed in the back of Agent Carson's pickup truck, and defendants were taken by Agent Carson to a location along the highway where they waited for Major Tracy Lucky. After Major Lucky arrived, he and Agent Carson conferred, and they agreed that they had cases against the defendants. It was at that point that the two defendants were informed that they were under arrest. Once in Agent Carson's truck, on the way to Natchitoches for booking, Agent Carson read defendants their constitutional rights from a card that he carried with him.

Defendant Windham testified, and defendant Davis confirmed, that he made no statements to Agent Carson after he had been read his rights. The state, however, says that statements were made while in transit to Natchitoches.

Prior to trial, defendant Davis filed, among others, motions to suppress evidence and to quash. In the motion to suppress, defendant Davis sought to suppress "all descriptions or accounts of, all references to, all statements concerning and anything whatsoever pertaining to the very existence of the deer." By this motion, defendant Davis sought to exclude any and all statements made by himself to Agent Carson, as well as evidence of the deer itself, since the body was found only because of defendant Davis' statements. In the motion to quash, defendant Davis asserted that the statute under which he was charged was unconstitutional. Defendant Windham also filed motions to suppress and to quash. However, in his motion to suppress, defendant Windham only sought to suppress statements made by himself, and not to suppress evidence of the deer's existence. The motion to quash was identical to defendant Davis' motion to quash.

After trial, defendant Windham was found guilty, and, after adverse rulings on his motions, defendant Davis pleaded guilty, reserving his rights to appeal the rulings on the motions. At a joint sentencing proceeding, both defendants were sentenced to the maximum penalty (R.S. 56:33) for a first offense, class three violation--five hundred dollar fine and ninety days in jail, eighty days suspended--and had their weapons confiscated. Defendants appeal the rulings on their motions, their sentences and defendant Windham challenges the failure of the trial court to enter a directed verdict or a verdict of acquittal.

Motions to Quash

The statute under which defendants were charged provides that "[v]iolation of the provisions of this Section ... by the hunting or taking of illegal deer or turkeys in open season constitutes a class three violation." R.S. 56:123(E)(1). Four bases are presented which, defendants allege, render the statute unconstitutional: vagueness, overbreadth, improper delegation of legislative authority to the executive branch, and improper promulgation of administrative regulations.

In order for a law to avoid being unconstitutionally vague, it "must describe the unlawful conduct with sufficient particularity and clarity that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto." State v. Dousay, 378 So.2d 414, 416 (La.1979). See also State v. Stilley, 416 So.2d 928, 929 (La.1982); State v. Baron, 416 So.2d 537, 538 (La.1982). By itself, § 123(E)(1) is vague in that it, as well as the remainder of Title 56, fails to define "illegal deer" with the requisite clarity and particularity. However, R.S. 56:123(A) provides that the commission may restrict hunting, and R.S. 56:124(1) provides that "antlerless deer, except spotted fawns may be taken only in accordance with and subject to such rules as may be adopted by the [Wildlife and Fisheries] commission with the advice of the department staff biologists." While this section unambiguously refers the reader to the extra-statutory rules, the statute, itself, does not put the average person on notice as to what the prohibited activities are.

The rules referred to are those promulgated by the Wildlife and Fisheries Commission, and are contained in the annual publication Louisiana Hunting, Fishing, and Motorboat Regulations, as well as in the Louisiana Register. 7 La.Reg. 357 (July 20, 1981).

Contained in the regulations promulgated by the commission are clear descriptions of what animals may and may not be hunted during clearly specified seasons. Under the heading "1980-81 Deer Hunting Schedule--General," the regulations provide:

"A. Bag, one legal deer per day, six legal deer per season.

B. A legal buck is a deer with visible antler, hardened bony material having no velvet, broken naturally through the skin. Killing bucks without at least one visible antler as described above and killing doe deer is prohibited except where specifically permitted.

C. Deer hunting restricted to legal bucks only, except where otherwise permitted.

D. Either sex deer is defined as male or female deer. The taking of spotted fawns is prohibited.

..." 7 La.Reg. 357 (July 20, 1981). (Emphasis added).

"Either sex hunting" is allowed in Natchitoches Parish on "[t]wo days, Nov. 21 and Nov. 27." Id. at 360. Considering the foregoing regulatory proclamation, there is no vagueness in the commission's prohibition against the hunting of doe deer.

While the statute itself does not define illegal deer specifically, the statute clearly directs the reader to consult the regulations of the Wildlife and Fisheries Commission, and those regulations are clear and unambiguous.

Defendants also argue that the statute is unconstitutionally overbroad. The thrust of their arguments is that the statute encompasses the "innocent" taking of doe, such as the...