State v. Kohler

• Decision Date: 17 May 1983
• Docket Number: No. 82,82
• Citation: 434 So.2d 1110
• Parties: STATE of Louisiana v. Kim P. KOHLER. KA 1020.
• Court: Court of Appeal of Louisiana — District of US

Page 1110

434 So.2d 1110

STATE of Louisiana v. Kim P. KOHLER.

No. 82 KA 1020.

Court of Appeal of Louisiana First Circuit.

May 17, 1983.

William R. Alford, Asst. Dist. Atty., Covington, for the State.

Salvatore Panzeca, Suzette Powers, New Orleans, for defendant.

Before COVINGTON, LANIER and ALFORD, JJ.

ALFORD, Judge.

Defendant, Kim P. Kohler, was indicted by the St. Tammany Parish Grand Jury on August 21, 1980, for the July 31, 1980, first degree murder of Randy Sebble. (La.R.S. 14:30) On November 10 and 11, 1981, defendant was tried and an unanimous jury returned a verdict of guilty as charged. After the sentencing phase of the bifurcated trial, the jury unanimously recommended that defendant be sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. In accordance with this recommendation, on December 17, 1981, the trial judge sentenced the defendant to serve a period of life imprisonment at hard labor under the Department of Corrections without benefit of parole, probation or suspension of sentence. Defendant urges eighteen assignments of error on appeal. However, prior to addressing those alleged errors, the court will confront two preliminary matters; one evident on the face of the record and the other raised in defendant's brief on appeal.

The record discloses that defendant entered a combined plea of not guilty and not guilty by reason of insanity to the charge of first degree murder. La.C.Cr.P. art. 552. Counsel was given 30 days to file special pleadings. Apparently, no further action was taken in this respect as nothing is contained in the record relative to defendant's plea. The law is clear that a defendant is not entitled of right to an examination and evaluation of his sanity at the time of the offense. The necessity of appointing a commission for such a purpose lies within the sound discretion of the trial judge. La.C.Cr.P. art. 650; State v. Taylor, 347 So.2d 172 (La.1977). The accused bears the burden of establishing by a clear preponderance of the evidence reasonable grounds for the judge to believe that he is mentally defective, or was at the time of the offense. Where no supporting evidence is produced, there is no compulsion upon the court to appoint a sanity commission. State v. Crawford, 410 So.2d 1076 (La.1982). Thus, it should be clear that although the defendant raised the question of sanity in his plea, nevertheless the extent of Kohler's ability to form a criminal mens rea at the time of the offense is not presently before the court.

The second preliminary matter relates to the jurisdiction of the court. Although he neither briefs the issue nor refers the court to any statutory or jurisprudential authority, nevertheless, in that portion of defendant's brief concerning the jurisdiction of the court, defendant posits the argument that jurisdiction of this appeal should be vested in the Louisiana Supreme Court rather than this court because defendant was convicted prior to the date criminal jurisdiction was conferred on the appellate courts of Louisiana.

Without exploring the legal mechanics of this appeal in detail, suffice it to say that after defendant's motion for a new trial was denied on December 17, 1981, defendant elected not to pursue anymore avenues of relief. Indeed, the record reflects that defendant wrote the trial judge personally and waived his appeal. Defendant's trial counsel withdrew from the case on January 25, 1982, but was reenrolled as counsel of record on May 4, 1982. On the same day (May 4, 1982), defendant filed a motion to appeal. This motion was denied by the trial judge on May 13, 1982.

Subsequently, on July 2, 1982, the Supreme Court granted a writ of mandamus ordering an out-of-time appeal. State ex rel. Kohler v. 22nd Judicial District Court, St. Tammany Parish, 417 So.2d 360 (La.1982). Pursuant to the writ, on July 30, 1982, and again on September 27, 1982, defendant filed a petition for appeal. Finally, on September 27, 1982, the trial judge signed an order granting defendant's petition for appeal.

Effective July 1, 1982, the Courts of Appeal in Louisiana were given appellate jurisdiction over all criminal cases triable by a jury, excepting those cases where the defendant has been convicted of a capital offense and a penalty of death actually has been imposed. La. Const. of 1974, art. V, § 10(A) and art. V, § 5(D). However, La. Const. of 1974, art. V, § 5(E) specifically provides that where an order of appeal had been entered prior to July 1, 1982, the Supreme Court would retain its jurisdiction over the case as previously mandated by the Constitution. Thus, the legislature intended the date of the filing of an order of appeal to be the operative date. In other words, if a defendant filed an order of appeal prior to July 1, 1982, the Supreme Court would retain jurisdiction over the appeal; a contrario sensu, where an appeal is entered on or after July 1, 1982, the respective Court of Appeal would have jurisdiction over the case as noted above. 1980 La.Acts, No. 843. Since defendant's "petition" for appeal was not entered until after July 1, 1982, this court has jurisdiction over the appeal and defendant's assertion otherwise is rejected.

Having dispensed with the above two preliminary matters, the court will address the arguments presented by defendant's assignments of error after a recitation of the facts found in the record. On the morning of July 31, 1980, Vincent Allnet was upset over the alleged theft of some jewelry he owned. Thinking he knew who stole the jewelry, Allnet and his nephew Owen Meilleur, who was living with Allnet at the time, rode around the neighborhood looking for one Randy Sebble. Although the travellers sojourned at various houses and barrooms, they were unable to locate Sebble.

Later in the morning, after Vincent and Owen returned home, Randy came over and Allnet immediately began questioning him relative to the alleged theft. Worked up in a fury over the loss of the property, Allnet initiated a fight with Sebble. After several minutes it was obvious Allnet was getting the upper hand on Sebble as the latter was thrown and rammed against the wall of the room. In a vain effort to protect Sebble from any further harm, Meilleur attempted to stop the beating Allnet was administering to Randy. However, immediately after Owen stepped into the action attempting to end the fracas, Allnet yelled at Owen that the latter had also stolen the jewelry. Vincent then turned on Owen and commenced giving Meilleur the same brutal treatment that he had given Randy.

His mind clouded by the emotion of the fight and the beating he sustained, Owen fell into unconsciousness. The next thing Meilleur remembered was waking up about 6:00 p.m. in his cousin's room in the upstairs portion of the house. Randy Sebble was nowhere to be found.

On the advice of Allnet, who had subsequently apologized for the altercation, Owen called his cousin Robert to request a ride to the Showboat Lounge in "Fat City" where another of Owen's cousins, Rita, was performing.

After giving him a lift to the Showboat Lounge, Robert dropped Owen off and apparently left the scene. As Owen approached the entrance to the lounge, he spotted his uncle's car in the parking lot. By the time Owen realized several occupants were in the car, he heard Vincent call out ordering him into the auto. Remembering the alleged theft of the jewelry and fearing for his safety, Owen attempted to flee. One of the occupants of the car, Floyd Webb, leaped from the auto and gave chase to Owen. Catching him a short distance later, Webb forced Owen to return to Vincent's car and then threw Meilleur into the vehicle. After he was settled in, Owen recognized the occupants of the car: Vincent Allnet, the driver; Kim Kohler, the defendant; Floyd Webb; Richard Allnet; and finally, Randy Sebble.

At trial, Owen testified that in addition to being commanded to either surrender the jewelry "or else", he was also beaten during the car ride by everyone except Randy and Vincent (who was driving). Owen specifically testified that Kohler took part in the physical assaults. Leaving the "Fat City" area and heading eastward, the car was driven along the Chef Menteur Highway. Later, after driving for quite awhile, Vincent stopped the car at a Seven-Eleven for some beer.

At this point, Owen attempted to escape from the auto hoping to catch the attention of a police unit parked at the convenience store. Although he struggled to break free, Owen was checked by Richard Allnet and the defendant who forced Owen's face into the seat in order to muffle his cries for help. Thus restrained and defeated in his fight for liberty, Owen waited as the others returned to the car. Vincent then resumed the journey eastward toward Slidell.

During the ride, Owen's life was threatened many times. Informed it was his last chance, Owen was told to either "spill the beans" and tell his captors the location of the jewelry or "that was it". The car continued on the Chef Menteur Highway toward "The Rigolets" until reaching a dark and deserted area. Turning off the main highway onto a lonely and secluded side road, Vincent stopped the car and everyone got out except Owen, who was too frightened to leave the vehicle. Owen was grabbed and dragged out of the car by Floyd Webb and Richard Allnet. In the interim, Kohler and Vincent Allnet were keeping a guarded watch over Randy Sebble, preventing his flight from the scene.

Once the malefactors succeeded in removing Owen from the car, Meilleur was led to the front of the vehicle. At this point, the malefactors pounced on Randy and Owen and began to beat them up again. Subsequent to the beatings, Floyd Webb drew a gun and started shooting the ground at the victim's feet. While Randy and Owen were scurrying to avoid being shot by Webb, the two Allnets and Kohler continued to tormet and ridicule them.

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