State v. Lozier

• Decision Date: 08 October 1979
• Docket Number: No. 64211,64211
• Citation: 375 So.2d 1333
• Parties: STATE of Louisiana v. Carl LOZIER.
• Court: Louisiana Supreme Court

Page 1333

375 So.2d 1333

STATE of Louisiana v. Carl LOZIER.

No. 64211.

Supreme Court of Louisiana.

Oct. 8, 1979.

Rehearing Denied Nov. 1, 1979.

William Noland, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Phillip J. Boudousque, Robert T. Myers, Asst. Dist. Attys., for plaintiff-appellee.

CALOGERO, Justice.

Defendant Carl Lozier was charged by bill of information with having committed two aggravated burglaries. Defendant was tried by jury and convicted on both counts. He was sentenced as a multiple offender to fifteen years at hard labor.

The first count charged that defendant entered Henry Hotard's apartment at 937 Pleasant Street after an accomplice, Angela Clay, locked Hotard in his bathroom, then admitted Lozier by unlocking the front door. While Hotard was in the bathroom, Lozier stole Hotard's pistol from the apartment.

The second count charged Lozier with procuring entry into a residence at 1323 St. Andrew Street # 7 by impersonating a policeman. Lozier and a confederate, who was dressed as a New Orleans Policeman, appeared at the St. Andrew Street residence. Subsequently Lozier and his accomplice gained entry into the residence by telling Mr. Havhuburg, an occupant, that they were policemen looking for counterfeit money. Mr. Havhuburg showed Lozier's accomplice the money that was in the house which the accomplice pronounced as "counterfeit" and seized.

Defendant contends that the trial court committed the following errors:

1. The trial court allowed the state over objection by the defense to amend the Bill of Information to substitute "1323 St. Andrew Street, Apartment No. 7" for "1323 St. Andrew Street Apartment No. 6."

2. Defendant's motion for a new trial on the grounds that the jury foreman was observed taking notes during the trial in violation of La.C.Cr.P. art. 793 was improperly denied.

3. The state presented no evidence that the defendant's entry was "unauthorized" as is required by R.S. 14:60.

4. The trial court over objection of the defendant allowed into evidence at the multiple bill hearing a certified copy of prison documents from the Louisiana State Penitentiary and a certified copy of case no. 239-508 of the Orleans Parish Criminal District Court Docket without proper foundation.

5. The state presented no evidence that Lozier, who plead guilty to another charge on March 7, 1974, was the same person convicted on April 4, 1978.

La.C.Cr.P. art. 487 ¹ orders a court to declare a mistrial if an indictment is amended with respect to a defect of substance after a trial begins. The state admits that the trial had begun when they amended the Bill of Information, but they contend that changing "1323 St. Andrew Street # 6" to "1323 St. Andrew Street # 7" was a defect in form only. As the mistake in the Bill of Information was a good faith error and the defense failed to present any evidence of prejudice, the trial court was correct in refusing defendant's motion for a mistrial.

Lozier urges that his convictions should be reversed on the grounds that the jury foreman violated La.C.Cr.P. art. 793 ² by taking notes while the judge repeated his instruction to the jury, referring to those notes in the presence of another juror, and showing those notes to another juror. The note taking took place when the jury returned to the courtroom after forty-five minutes of deliberation to rehear the judge's charges on the difference between simple and aggravated burglary. According to the sworn testimony of the defense counsel, he observed the foreman taking notes at this time, but he did not object, nor did he ask to approach the bench. Under these circumstances, we hold that the defense waived their right to object to this violation of La.C.Cr.P. art. 793 by not making a contemporaneous objection. State v. Anderson, 333 So.2d 919 (La.1976).

The issue presented by defendant's assignment of error number three has never been directly confronted by a Louisiana court: Does entry by misrepresentation constitute "unauthorized" entry, ³ an essential element of aggravated burglary. ⁴ Generalizations about the law of burglary in other states is difficult, because most states have replaced the common law "breaking and entering" requirement with varied entry requirements. These include Louisiana's "unauthorized" entry, La.R.S. 14:60; Nebraska's "willful and malicious" entry, Neb.R.S. of 1943, 28-532; Oregon's "unlawful" entry, Or.R.S. 164:205, et seq. and California's liberal entry with felonious intent. Cal.Pen.C. Sec. 459 et seq.

Traditionally consent to enter is a defense against burglary, but this consent may be vitiated by fraud or threat of force. 2 Wharton's Criminal Law and Procedure, Roland Anderson (ed.), 1957, Sec. 415, p. 39. LaFave and Scott states that an entry gained through fraud or threat of force was a constructive breaking, but if the occupant had a reasonable chance to close the opening procured in this manner then no breaking would have occurred. LaFave and Scott, Criminal Law, Sec. 96, p. 709.

Fraud and deceit are irrelevant under California type statutes which require an "entry", although the jurisprudence in those states sometimes requires that the entry be without the consent of the occupant. People v. Gauze, 15 Cal.3d 709, 125 Cal.Rptr. 773, 542 P.2d 1365 (1975). In a long line of cases beginning with People v. Barry, 94 Cal. 481, 29 P. 1026 (1892), California courts have held that a person can be convicted of burglary even if his entry was not trespassory. A person who enters a store with the intent to commit a felony therein can be convicted of burglary even if he enters during business hours and never strays from areas open to the public. People v. Brittain, 142 Cal. 8, 75 P. 314 (1904). The California courts have upheld burglary convictions for shoplifting, People v. Corral, 60 Cal.App.2d 66, 140 P.2d 172 (1940), and for flim-flam artists who shortchange cashiers. People v. Stone, 155 Cal.App.2d 259, 318 P.2d 25 (1957).

Several states have criticized the California rule on the grounds that it is overbroad, or they have disregarded California cases on the grounds that their state statutes require more than "entry" with intent to commit a crime therein. People v. Carstensen, 161 Colo. 249, 420 P.2d 820 (1966); State v. Taylor, 17 Or.App. 499, 522 P.2d 499 (1974); State v. Rogers, 83 N.M. 676, 496 P.2d 169 (N.M.App.1972); Smith v. State, 362 P.2d 1071 (Alaska, 1961). In those states the "entry . . . must be unlawful in itself, that is, trespassory, and without regard to the second element of the crime, the intent to steal." Id., 362 P.2d at 1073.

This Court rejected the California rationale that an entry with felonious intent is an unauthorized entry in State v. Dunn, 263 La. 58, 267 So.2d 193 (1972):

"We conclude that an entry into a building open to the public at the designated hours and within the designated confines is not an unauthorized entry regardless of the intent of the person so entering." See, Smith v. State of Alaska, (Alaska), 362 P.2d 1071, 93 A.L.R.2d 525.

The court stated that "unauthorized" entry is an entry without consent, express or implied. In the case of a building open to the public, authorization to enter is implied.

In the case of a private dwelling a person must have the consent of an occupant or an occupant's agent to constitute a defense to "unauthorized" entry. This consent must be given by a person with authority and capacity to consent. 1 Wharton's Criminal Law, Charles Torcia, (ed.), 14th edition, 1978, § 46, p. 231. The consent must be voluntary and intelligent, that is, based on a reasonable understanding of the identity and purpose of the intruder. Id. Wharton p. 231. Obviously, a child who admits a total stranger would not necessarily have sufficient understanding of the circumstances of the entry to give valid consent to an entry. On the other hand once a maid, friend, or employee is given general consent to enter a house at certain times, that consent will generally remain valid until revoked or the terms of the consent exceeded. See, Conner v. State, 85 Tex.Cr. 98, 210 S.W. 207.

The significance of the consent of the occupant in a burglary offense grows out of the rationale behind burglary statutes that a man's home is his castle. (2 Blackstone Commentaries (Jones ed., 1916) § 258 p. 2430). Burglary laws are not designed primarily to protect the inhabitant from unlawful trespass and/or the intended crime, but to forestall the germination of a situation dangerous to the personal safety of the occupants. People v. Lewis, 274 Cal.App.2d 912, 920, 79 Cal.Rptr. 650, 655 (1969). This concern is reflected in the Reporter's Comments to La.R.S. 14:60: "there may also be Great danger to human life in the burglarization of vessels, trailers, and the like." (emphasis provided)

In the archetypal burglary an occupant of a dwelling is startled by an intruder who may inflict serious harm on the occupant in his attempt to commit the crime or to escape from the house. The frightened occupant, not knowing whether the intruder is bent on murder, theft, or rape, may in panic or anger react violently, causing the burglar to retaliate with deadly force. People v. Lewis, 79 Cal.Rptr. at 655.

This violent scenario is far less likely to unfold where the intruder with felonious intent is known to the occupant and has expressed or implied consent to be on the premises. Thus in Dunn, supra, a thief's Entry into a business during business hours with the intent to steal did not in itself provoke the defensive reaction of the occupant or owner that may have led to further violence to the occupant or bystanders. Similarly where an employee or friend is on the premises with the consent, express or implied, of an occupant, the discovery of the crime is far less likely to provoke the violence that the burglary statute is designed to discourage.

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