State v. Landry

• Decision Date: 14 January 1985
• Docket Number: No. 84-KA-221,84-KA-221
• Citation: 463 So.2d 761
• Parties: STATE of Louisiana v. Philip W. LANDRY. 463 So.2d 761
• Court: Court of Appeal of Louisiana — District of US

Page 761

463 So.2d 761

STATE of Louisiana v. Philip W. LANDRY.

No. 84-KA-221.

463 So.2d 761

Court of Appeal of Louisiana,

Fifth Circuit.

Jan. 14, 1985.

John M. Mamoulides, Dist. Atty., Dorothy A. Pendergast, Louise Korns, Asst. Dist. Attys., Gretna, for plaintiff-appellee.

Mark McTernan, McTernan, Parr & Rumage, New Orleans, for defendant-appellant.

Before CURRAULT, GAUDIN and DUFRESNE, JJ.

CURRAULT, Judge.

Philip W. Landry was charged in a Jefferson Parish complaint-affidavit with operating a motor vehicle while intoxicated and reckless operation of a motor vehicle in violation of LSA-R.S. 14:98 and 14:99, respectively. On September 27, 1983, after being apprised of his right to be represented by an attorney, retained or appointed Landry executed a written waiver of that right. On January 6, 1984, Landry was tried before the Honorable J. Robert Hoepffner, Judge, First Parish Court, and found guilty as charged. Landry was immediately fined Three Hundred Dollars ($300) plus costs and sentenced to six months in jail. The jail term was suspended and Landry was placed on two years probation subject to special conditions. ¹ Subsequent to sentencing, the State dismissed the reckless operation charge.

Landry thereafter retained counsel and on March 2, 1984, a Fifth Circuit Court panel granted his application for a writ of review.

It is from the above conviction and sentence that Landry seeks relief on review, asserting the following questions (assignments of error):

(1) Was the defendant entitled to a trial by jury?;

(2) Did the court err in failing to advise the defendant of his right to a trial by jury?;

(3) Did the defendant waive his right to a trial by jury?;

(4) Are Article I, Section 17 of the Louisiana Constitution of 1974 and Code of Criminal Procedure Article 493.1 unconstitutional?; and

(5) Was the defendant's conviction based upon evidence which viewed in a light most favorable to the state still failed to meet the prosecutor's burden of proof?

The central theme of assignments of error numbers 1 through 4 is that the defendant was entitled to a trial by jury and that Article I, Sec. 17 of the Louisiana Constitution and LSA-C.Cr.P. Article 779, which requires that cases such as the present one be tried by court alone, are unconstitutional. In order to properly determine the merits of errors numbers 1 through 3, we must first decide error number 4. However, we do not find it necessary to directly pass upon error number 4, namely the constitutionality of LSA-Constitution Article I, Section 17 and LSA-C.Cr.P. Article 493.1 as applied to driving while intoxicated prosecution, since such articles are presumed constitutional and have indeed been held constitutional and defendant failed, in the trial court, to either raise the issue of their constitutionality or traverse the presumption they enjoy. LSA-R.S. 14:3; State v. Pickering, 432 So.2d 1067 (La.App. 3d Cir.1983); State v. Johnson, 458 So.2d 1301, (La.1984); State v. Hynes, 458 So.2d 1303 (La.1984). See also State v. Odell, 458 So.2d 1304 (La.1984); State v. McCarroll, 337 So.2d 475 (La.1976); State v. Vieto, 453 So.2d 259 (La.App. 5th Cir.1984).

We now turn our attention to the question of whether or not defendant was entitled to a jury trial. However, in order to reach that question, we must first pass upon, as error patent, the sufficiency of the bills of information that defendant was charged by and their joinder.

Articles 464 and 384 of the Code of Criminal Procedure state that the information must be a plain, concise and definite written statement of the essential facts constituting the offense charged and that such written accusation of the crime be made and signed by the district attorney.

Defendant was charged in the First Parish Court, Parish of Jefferson, with two complaint-affidavits that were utilized as bills of information. A stamp, charging defendant and carrying the district attorney's signature, was placed on the back of each citation. While there may be some question as to the sufficiency of the district attorney's signature, we note that no objection as to the signature or adequate notice was ever raised prior to or at the time of trial.

Where the sufficiency of an indictment or information is not challenged either prior to or at trial, the pleading must be held sufficient unless it is so defective that it does not, by any reasonable construction, set forth an identifiable offense against the laws of this state, and inform the defendant of the statutory bases of the offense. State v. Storms, 406 So.2d 135 (La.1981). Even where the prosecutor's signature has been omitted from an otherwise fully sufficient bill of information, apprising defendant of the nature and cause of the accusation against him, such error, in light of active prosecution, does not merit reversal. State v. White, 404 So.2d 1202 (La.1981).

Since there were no objections and the matter was actively prosecuted, we consider these stamped complaint-affidavits sufficient to apprise defendant of the charges against him and accordingly find them valid bills of information. LSA-Const. Art. 1, Sec. 13. If there were any doubts concerning the authenticity of these prosecutorial instruments, those doubts were unquestionably removed by the district attorney's active prosecution of this case.

We have determined the prosecutorial instruments to be valid bills of information. Now, for resolution of whether defendant was entitled to a jury trial, we must consider the propriety of their joinder.

LSA-C.Cr.P. Article 493.1 provides that when two or more misdemeanors are joined in the same indictment or information limiting the maximum aggregate sentencing exposure, there is no corresponding right to trial by jury. However, where two or more misdemeanors have been informally joined in a "case", each representing a single bill of information, the maximum aggregate sentencing exposure is not limited and defendant would enjoy the right to a jury trial. State v. Johnson, supra; State v. Odell, supra.

We note that the stamped complaint-affidavits were filed simultaneously under a single docket number, presented as one information at arraignment and trial and were, at all pertinent times throughout this matter, considered and treated as one information by both the court and the district attorney. In light of the prior treatment of the complaint-affidavits, we find they were properly joined so as to constitute separate counts of a single bill of information, joined as per LSA-C.Cr.P. Articles 493 and 493.1; therefore limiting the defendant's sentencing exposure to six months and/or a Five Hundred Dollar ($500) fine. Accordingly, defendant was not entitled to a jury trial.

We now turn our attention to defendant's contention that the state failed to carry its burden of proof, beyond a reasonable doubt, that he was driving while intoxicated in violation of LSA-R.S. 14:98. Defendant argues that the circumstantial evidence offered by the state was insufficient to support a conviction of driving while intoxicated under the standards set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and LSA-R.S. 15:438.

The Jackson standard of review for sufficiency of the evidence, adopted by our courts in State v. Byrd, 385 So.2d 248 (La.1980), is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. See State v. Sutton, 436 So.2d 471 (La.1983) and State v. Boelyn, 432 So.2d 260 (La.1983).

LSA-R.S. 15:438 provides as follows:

The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

The following passage from State v. Wright, 445 So.2d 1198, 1201 (La.1984) explains how Jackson and LSA-R.S. 15:438 apply to a case:

This Court has recognized that R.S. 15:438 is not a purely separate test from the Jackson standard to be applied instead of a sufficiency of the evidence test whenever circumstantial evidence forms the basis for the conviction. State v. Austin, 399 So.2d 158 (La.1981). Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. Due process requires no greater burden. R.S. 15:438 provides an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. Exclusion of every reasonable hypothesis of innocence is therefore a component of the more comprehensive reasonable doubt standard, where circumstantial evidence is used to convict. As we stated in State v. Chism, 436 So.2d 464 (La.1983). La.R.S. 15:438 "may not establish a stricter standard of review than the more general reasonable juror's reasonable doubt formula, [but] it emphasises the need for careful observance of the usual standard, and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence."

The defendant was convicted of operating a motor vehicle while intoxicated in violation of LSA-R.S. 14:98. The pertinent section of LSA-R.S. 14:98 as in effect at the time of the incident provided:

"A. The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, vessel or other means of conveyance while under the influence of alcoholic beverages, narcotic drugs, central nervous system stimulants, hallucinogenic drugs or barbiturates."

In order to convict an accused of driving while intoxicated, the state need only prove (1) that defendant was operating a vehicle or other conveyance; and (2) that defendant was under the influence of alcoholic beverages or some type of...