State v. Davis, 65852
| Decision Date | 19 May 1980 |
| Docket Number | No. 65852,65852 |
| Citation | 385 So.2d 193 |
| Parties | STATE of Louisiana v. Nelson Grant DAVIS. |
| Court | Louisiana Supreme Court |
William F. Grace, Jr., Havard L. Scott, III, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., David R. Paddison, Asst. Dist. Atty., for plaintiff-appellee.
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Defendant, Nelson Grant Davis, was charged by grand jury indictment with two counts of first degree murder. On the day of trial, the prosecutor amended the indictment to charge defendant with one count of second degree murder in violation of R.S. 14:30.1. Following trial, a twelve-member jury returned a 10-2 verdict of guilty as charged, and defendant was sentenced to life imprisonment. On appeal, defense counsel alleges eight assignments of error.
On July 20, 1976, Paulette Royal and Eddie Smith were shot to death in a hotel room at Howard Johnson's Motor Lodge in New Orleans. A third person, Samuel Williams, was also in the hotel room and was shot, but lived and later testified at defendant's trial. Three men, Jesse Ford, Clarence Davis and the defendant, were arrested and charged with the shootings. Jesse Ford testified at defendant's trial in exchange for a grant of immunity from prosecution for the murders.
Ford testified that he was with defendant when David Joseph Sylvester offered to pay defendant "$10,000 a head" to shoot Paulette Royal and Eddie Smith. Sylvester wanted the two dead because they were key state witnesses in a narcotics prosecution against him. On the day after this conversation, defendant and Clarence Davis, defendant's brother-in-law, allegedly forced Ford to get into a car and go with them to the victims' hotel room. Defendant wanted Ford to go along because Ford knew Eddie Smith and probably could get Smith to open the door for them. Smith opened the door for Ford as expected, and Ford, Clarence Davis and the defendant entered the room. The victims, Eddie Smith and Paulette Royal, were told to lie face down on the floor. After defendant became aware that a third person, Williams, was in the room, defendant ordered, "He goes too." Ford testified that defendant put a pillow over Eddie Smith's head and then shot him in the head three times. Defendant then did the same to Paulette Royal. Ford stated that Clarence Davis forced Williams on the floor, put a pillow over Williams' head, and shot him in the head, but Davis' gun jammed after one shot. Defendant then put his own gun to Williams' head and pulled the trigger several times, but the gun wouldn't fire as it had run out of bullets. Defendant, Davis and Ford then fled from the room.
Samuel Williams testified that on the day of the shootings, he was asleep in the hotel room he shared with Smith and Royal when a knock on the door awakened him. Three strangers entered the room and engaged in a conversation with Eddie Smith. Shortly thereafter, Williams became aware that the strangers were armed. The intruders told Williams to get out of bed. One of them pulled him out of the bed, forced him to lie face down on the floor, and then put a pillow over his head. Williams said he could see or hear nothing after the pillow was placed over his head. Some time after the shooting, he gained consciousness and went for help. Williams identified the defendant as one of the three intruders, and as the man who had pulled him out of his bed and forced him onto the floor.
Assignments of Error Numbers 1 and 7(a)
Defense counsel contends the trial judge erred in allowing the prosecutor to amend the grand jury indictment, which charged defendant with first degree murder, to charge second degree murder.
District attorneys are empowered to amend indictments to charge lesser offenses. See State v. Gilmore, 332 So.2d 789 (La.1978). The issue here is whether the amendment violated the defendant's constitutionally protected right to have his prosecution initiated by an indictment of the grand jury. Louisiana's constitutional provision states that "no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by grand jury". La.Const.1974, art. 1, § 15. See also La.C.Cr.P. art. 382. 1 Under the law applicable to defendant, second degree murder is a crime punishable by life imprisonment and, therefore, is a crime the prosecution of which must be instituted by grand jury indictment. State v. Stevenson, 334 So.2d 195 (La.1976). These legal precepts would require that a person should not be accused of the offense for which defendant was charged and convicted except by a group of his fellow citizens acting independently of either prosecuting attorney or judge. See Stirone v. United States, 361 U.S. 212 at 218, 80 S.Ct. 270 at 273, 4 L.Ed.2d 252 (1959).
To support his argument that defendant was deprived of his constitutional right, counsel relies on State v. Donahue, 355 So.2d 247 (La.1978), in which we reversed a conviction because the district attorney, after nolle prossing a grand jury indictment of first degree murder, reinstituted prosecution by a bill of information charging the defendant with second degree murder. We held the reinstitution of prosecution by bill of information in the Donahue case to be a violation of the defendant's constitutional right to have the second degree murder charge instituted by grand jury indictment.
Although the distinction is one without much difference, Donahue is distinguishable from the instant case as the prosecution did not nolle pros the grand jury indictment and reinstitute prosecution by bill of information. Here, he formally amended the indictment in open court on the day of trial to charge the lesser offense of second degree murder. Such an amending procedure cannot be characterized as a true reinstitution of prosecution.
Though not applicable to this prosecution, we observe that such an amendment may prejudice defendant's right to have the second degree murder charge instituted by grand jury indictment if, under the applicable law, second degree murder is not a lesser and included offense of first degree murder, i. e. if the second degree murder definition contains essential elements not included as essential elements of first degree murder. The prejudice results by virtue of the fact that as to the elements of the offense not so included, the prosecutor makes the judgment as to whether the evidence would justify the prosecution instead of the grand jury who, by law, had sole authority to make such a determination.
At the time of the murder of which defendant was convicted, first degree murder was defined as:
". . . the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated rape, (aggravated burglary) or armed robbery; or
(2) When the offender has a specific intent to kill, or to inflict great bodily harm upon, a fireman or a peace officer who was engaged in the performance of his lawful duties; or
(3) When the offender has a specific intent to kill or to inflict great bodily harm and has previously been convicted of an unrelated murder or is serving a life sentence; or
(4) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person;
(5) When the offender has specific intent to commit murder and has been offered or has received anything of value for committing the murder. " 2
Second degree murder was defined as:
Under the applicable definitions above, first degree murder includes all the elements (killing with specific intent) of the first type of second degree murder. The amending of the indictment to charge the lesser offense of second degree murder did not prejudice the defendant's constitutional right to have the prosecution for that crime instituted by a grand jury. When the grand jury considered the evidence relevant to the elements of first degree murder and decided to indict defendant with that crime, it necessarily considered the evidence relevant to all the essential elements of specific intent second degree murder.
This assignment lacks merit.
Assignment of Error Number 2
Defense counsel contends the trial judge erred in denying counsel's motion for a continuance, made as a result of the state's amendment of the indictment to charge one count of second degree murder. Counsel contends the defense needed the continuance in order to prepare for any differences in defending a first degree murder charge and a second degree murder charge.
Code of Criminal Procedure art. 489, in pertinent part, provides as follows:
The purpose of the continuance is the prevention of prejudicial surprise to the defendant. State v. Gibson, 322 So.2d 143 (La.1975). The defendant has the burden of establishing that an amendment has prejudiced the defense. State v. Strother, 362 So.2d 508 (La.1978). Further, the trial judge has great discretion in deciding whether to grant a continuance,...
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