State v. LeBlanc, CR86-800

• Decision Date: 07 October 1987
• Docket Number: No. CR86-800,CR86-800
• Citation: 517 So.2d 951
• Parties: STATE of Louisiana, Plaintiff-Appellee, v. Anthony L. LeBLANC, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 951

517 So.2d 951

STATE of Louisiana, Plaintiff-Appellee, v. Anthony L. LeBLANC, Defendant-Appellant.

No. CR86-800.

Court of Appeal of Louisiana Third Circuit.

Oct. 7, 1987.

Writ Granted in part with Order; Denied in part Feb. 5, 1988.

John Crochet, Public Defender Office, Lake Charles, for defendant-appellant.

Richard Ieyoub, Dist. Atty., Saundra Isaac, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.

Before DOMENGEAUX, C.J., and GUIDRY and DOUCET, JJ.

DOUCET, Judge.

On February 24, 1986, defendant, Anthony L. LeBlanc, was indicted for the crime of aggravated arson, a violation of La.R.S. 14:51. On April 15, 1986, defendant was found guilty by a jury of twelve persons of simple arson with damages amounting to more than $500, a violation of La.R.S. 14:52. Defendant was sentenced on June 9, 1986, to serve 15 years at hard labor and pay a fine of $5,000.00, in default of payment thereof to serve an additional year in the parish jail. Defendant appeals his conviction based on eleven assignments of error. Assignment number seven has been abandoned.

The facts show that on the night of January 31, 1986, the defendant set fire to some clothing in the house trailer of the victim, Tracy Gauthier. The fire damaged personal property and the trailer itself. At trial the defendant admitted to setting the fire but claimed that he did so only after repeated requests to do so by the victim. Defendant and the victim had been dating each other for approximately fifteen months prior to the incident, but had broken up the week before.

Defendant testified that the victim asked him to burn her trailer on at least four separate occasions, the last only twelve or thirteen days before he set the fire. He stated that the victim could no longer pay the monthly mortgage note on the trailer and saw arson as a solution to that problem. His mother, Ava LeBlanc, testified that she was present on one occasion when the victim asked the defendant to burn her trailer for the stated purpose of collecting insurance proceeds. The victim denied ever asking the defendant to burn her trailer and stated that her insurance had lapsed some seven months before the fire.

On the evening in question, the defendant contacted his nephew, Darren Bruney, who drove him to the victim's house trailer situated in a local trailer park. Mr. Bruney testified that the defendant's speech was slurred and he was visibly intoxicated. Upon their arrival at approximately 11:45 p.m., the defendant knocked on the victim's door and when she answered out of a window requested that he be allowed to retrieve some of his belongings. Mr. Bruney testified that the victim voluntarily opened the door and the defendant entered while the victim testified that he opened the unlocked door after she asked him to leave. The defendant, Mr. Bruney, and the victim all testified that the victim then left the trailer and went to her neighbor's trailer. The neighbor, Mrs. Primeaux, testified that the victim appeared to be "really upset." After lighting the fire, the defendant and Mr. Bruney left the trailer park. Defendant was later arrested.

ASSIGNMENT OF ERROR NO. 1:

Defendant contends the trial court erred in denying his motion for a continuance. Defendant was indicted by bill of information that contained the following charge: That defendant did intentionally damage the property of Tracy Gauthier, to-wit: A motor home without the owner's consent by use of any explosive substance or by setting fire to, with the damage amounting to $2,000, in violation of La.R.S. 14:52. The cover of the bill stated that defendant was charged with aggravated arson, a violation of La.R.S. 14:51. On the day of defendant's trial, the district attorney moved to amend the bill to comply with the elements of aggravated arson and added: "wherein it was forseeable [sic] that human life could be endangered, in violation of LSA R.S. 14:51." After the district attorney was allowed to amend the bill, defendant moved for a continuance based on his claim that he was prepared to go to trial only for simple arson and not aggravated arson, which required a different defense. The state opposed this motion and argued that despite the error, defendant knew the state intended to prosecute defendant for aggravated arson because of the extensive pre-trial plea negotiations. The court questioned defense counsel as follows:

"THE COURT: Is Ms. Head correct that there have been plea negotiations where you had talked about amending the bill to simple arson from aggravated arson?

MR. CROCHET: I don't remember whether it said amending or pleading to simple arson. We also talked about pleading to ...

THE COURT: Well instead of going to trial on aggravated arson to plead to simple arson, is that ...

MR. CROCHET: Well let me put it this way, I was fairly sure that the District Attorney meant aggravated arson, however I am going by what the bill said as far as preparing for trial, and was hoping that she wouldn't catch it." (Emphasis added)

Defendant contends he was improperly denied a continuance under La.C.Cr.P. art. 489. This article states:

"If it is shown, on motion of the defendant, that the defendant has been prejudiced in his defense on the merits by the defect, imperfection, omission, uncertainty, or variance, with respect to which an amendment is made, the court shall grant a continuance for a reasonable time. In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of the prosecution. If it becomes necessary to discharge the original jury from further consideration of the case, the trial before a new jury will not constitute double jeopardy."

This article was intended to protect a defendant against surprise and prejudice which might result from such an amendment, and it is incumbent upon defendant to show in what respect his defense has been prejudiced by the amendment. State v. Brown, 338 So.2d 686 (La.1976). The trial judge has great discretion in deciding whether to grant a continuance to a defendant on the basis that an amendment to an indictment prejudiced the defense, and his decision will not be disturbed on appeal unless the evidence shows that he arbitrarily or unreasonably abused that discretion. State v. Davis, 385 So.2d 193 (La.1980).

In this instance, the trial court determined that defense counsel was not surprised by the amendment. In fact, defense counsel's response indicates that he was well aware that the state made an inadvertent error in the bill and hoped "she wouldn't catch it." Although defense counsel argues that he had prepared a defense only to simple arson, he knew the district attorney would move to amend the bill as soon as the error came to light. Thus, defendant has failed to show surprise resulting in prejudice to his defense. The trial judge's ruling is supported by the record. We therefore find no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 2:

Defendant contends the trial court erred in denying his motion for a mistrial when the state made reference to defendant's inculpatory statements and confession in the state's opening statement.

During the state's opening statement, the district attorney stated the following:

"MS. HEAD: And then you'll hear from the defendant's nephew, Darren Bruney. Darren will tell you the circumstances that brought him and Anthony LeBlanc to Tracy Gauthier's trailer. He'll tell you why they went over there in the first place, to retrieve some of Mr. LeBlanc's personal property from Ms. Gauthier. And then he'll also tell you what happened and what was said as soon as they left that trailer park. He'll tell you that once they were about to get on the highway to head back home that he noticed the smoke rising above the trees above the trailer park, and he'll tell you what was said to him, what was explained to him when he remarked to [sic] that smoke and you'll hear Darren Bruney testify to that. Then you'll also hear from one of the detectives who was involved in the arrest of Mr. LeBlanc after a warrant was issued for his arrest. That detective went and arrested Mr. LeBlanc and he'll tell you what happened and what was said during the arrest of Mr. LeBlanc." (Emphasis added)

Defendant contends that the district attorney's reference to "they" left no doubt that it was a statement made by the defendant to the named parties. The statements that were eventually testified to included defendant's statement to his nephew that he had "burned her house" and defendant's statement to Detective Frey that defendant had been at the trailer but denied setting it on fire. Defendant contends that both of these statements were inculpatory. Therefore, the district attorney's reference to them in the opening statement was improper and constitutes reversal.

La.C.Cr.P. art. 767 states:

"The state shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant."

La.C.Cr.P. art. 766 states that:

"The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge."

Evidence that is not fairly within the scope of a prosecutor's opening statement is generally held to be inadmissible. State v. Risen, 357 So.2d 531 (La.1978). Thus, the prosecutor is under almost conflicting requirements in presenting an opening statement: All evidence they intend to introduce must be included in their opening statement yet confessions and inculpatory statements they intend to introduce cannot be referred to in the opening statement.

In State v. Whitmore, 353 So.2d 1286 (La.1978), the prosecutor referred to the defendant's confession in his opening statement. The court held that, although this was an error on the prosecutor's part, there were no grounds for reversal when the...