State v. Nelson

• Decision Date: 19 May 1978
• Docket Number: No. 60908.,60908.
• Citation: 357 So.2d 1100
• Parties: STATE of Louisiana v. Richard NELSON.
• Court: Louisiana Supreme Court

357 So.2d 1100

STATE of Louisiana v. Richard NELSON.

No. 60908.

Supreme Court of Louisiana.

April 10, 1978.

Rehearing Denied May 19, 1978.

John J. Dolan, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

Defendant Richard Nelson was charged by bill of information with three counts of aggravated burglary and one count of attempted second degree murder. He was tried on all four counts before a jury and found guilty of two counts of aggravated burglary, one count of simple burglary and one count of attempted second degree murder. He was sentenced to serve ten years imprisonment on count one, aggravated burglary; twenty years imprisonment on count two, aggravated burglary; and ten years imprisonment on count three, simple burglary¹—the sentences to run consecutively. He was also sentenced to serve nine years imprisonment on count four, attempted second degree murder; the sentence to run concurrently with the other three. On appeal, the sole assignment of error relied upon for reversal questions the propriety of joining the four offenses for trial.

The defendant was charged with the aggravated burglary of three uptown New Orleans residences: the first occurring on September 1, 1976, the second on September 8, 1976, and the third on September 9, 1976. During the second, the owner of the burgled house was attacked by the burglar and sustained near fatal stab wounds, giving rise to the second degree murder charge. The residences burglarized were located in the same neighborhood, and each was entered by the burglar between 10:30 p. m. and midnight. The defendant was positively identified as the perpetrator of the offenses by the inhabitants of the residences.

Prior to trial, the defendant filed a motion which read as follows:

"MOTION TO QUASH BILL OF INFORMATION

Now into Court through undersigned counsel comes the defendant herein, who moves the Court that the Bill of Information filed in this matter is defective to his prejudice and should be quashed for the following reasons:

1. As stands the bill of information filed by the State in this matter contains a misjoinder of separate offenses, specifically to time, date, location and alleged victim, thereby setting up a trial situation that will prejudice the defendant's rights afforded by United State's (sic) Constitutional guarantees under the Fifth, Sixth and Fourteenth Amendments.

2. Mover relies on the interpretation of Article 493 of the Code of Criminal Procedure and the Severance of Offense Article of 495.1 of the La.Code of Criminal Procedure, to substantiate his request to quash this present bill of information filed against him.

WHEREFORE, the mover for the aforecited reasons stated in this motion requests that the present bill of information filed against him be quashed and that a contradictory hearing be had on this matter with the State of Louisiana on a time and date to be fixed by this Court."

The motion was denied by the trial court without a hearing.

In 1975 the legislature liberalized the rules governing joinder of offenses by amending C.Cr.P. 493 to provide:

"Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial."

The joinder of the offenses with which the defendant was charged did not offend the liberal provisions of C.Cr.P. 493.

The three aggravated burglaries are clearly of the "same or similar character" and the attempted second degree murder occurred during the commission of one of the burglaries and thus constituted part of the "same act or transaction." See State v. Proctor, 354 So.2d 488 (La.1977); State v. Holstead, 354 So.2d 493 (La.1977); State v. Carter, 352 So.2d 607 (La.1977).

That the several offenses were properly joined under C.Cr.P. 493 does not necessarily sanction their joint trial. C.Cr.P. 495.1, added by the legislature in 1975, provides:

"The court, on application of the prosecuting attorney, or on application of the defendant shall grant a severance of offenses whenever:

(a) if before trial, it is deemed appropriate to promote a fair determination of the defendant's guilt or innocence of each offense; or

(b) if during the trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant's guilt or innocence of each offense. The Court shall consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense."

The State argues initially that the issue of whether the defendant should have been granted a severance is not presented on appeal because the defendant failed to file a "motion for severance" and thus waived any objection he may have had. While it is true that the only pre-trial motion relevant to this issue was captioned "Motion to Quash Bill of Information" and not "Motion for Severance," we are not persuaded by the State's argument that the defendant waived the severance issue. In paragraph 2 of the motion, the defendant's counsel specifically relied upon C.Cr.P. 495.1 for the severance of the offenses. A rigid and formalistic approach denying the defendant the relief sought in the body of the motion merely because of the failure to include in the caption the words "motion for severance" would retard rather than advance the interests of justice. Accordingly, we hold that the severance issue was presented to the trial court through the defendant's motion.

In State v. Holstead, supra, we outlined the issues presented the trial judge when ruling on a pretrial motion to sever:

". . . one of the critical questions to be determined by the trial judge presented with a severance motion is `whether, in view of the number of offenses charged and the complexity of the evidence. . . offered, the trier of fact could distinguish the evidence and apply the law intelligently as to each offense.' C.Cr.P. art. 495.1; State v. Proctor, 354 So.2d 488 (La.1977). A second issue to be decided in a case such as this one is whether the offenses joined because they are of the `same or similar character' under Article 493 (as opposed to `same transaction' or `common plan' joinder), are admissible as similar acts under R.S. 15:445 and 446. State v. Carter, 352 So.2d 607, handed down November 14, 1977. . . ." 354 So.2d 493, 495.

Our recent cases dealing with the first question indicate that the following problems should be considered by the trial judge:

"`. . . the jury may become confused in trying to apply the applicable law and evidence to the correct offense; that the jury may consider that a person charged with doing so many things is a bad man who must have done something, a feeling that might lead to a cumulation of the evidence; that the judge might find it difficult to adequately charge a jury as to the law with respect to each offense; that the prosecutor may find it troublesome to present his evidence in a compartmentalized and understandable manner; and that a defendant may be confounded or embarrassed in his defense because of the sheer number or complexity of the charges against him. See: United States v. Catena, 500 F.2d 1319 (3rd Cir. 1974); United States v. Clayton, 450 F.2d 16 (1st Cir. 1971); Daly v. United States, 119 U.S.App.D.C. 353, 342 F.2d 932 (1964); Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964); United States v. Quinn, 365 F.2d 256 (7th Cir. 1966); United States v. Lotsch, 102 F.2d 35 (2nd Cir. 1939); United States v. Moreton, 25 F.R.D. 262 (W.D.N.Y.1960); Wright, 1 Federal Practice and Procedure § 222, p. 435; 8 Moore's Federal Practice §§ 8.052, 14:03. Moreover, there is no doubt that the greater the number of offenses charged and the degree of their complexity, the greater the likelihood of the occurrence of any or all of these dangers. 8 Moore's Federal Practice § 8.021.'" State v. Holstead, supra, at 495-96, quoting from State v. Proctor, supra, at 491.

In the present case the defendant was tried for three similar aggravated burglaries and an attempted second degree murder arising out of one of the burglaries. Because of the relatively uncomplicated nature of the offenses and because the number of offenses joined was not too great (compare with State v. Holstead, supra), there was little danger that the jury would be unable to distinguish the evidence and intelligently apply the law to each offense.

Error was committed, however, in failing to sever the offenses on the basis of the second inquiry noted above. In State v. Carter, supra, we held that when evidence of the joined offenses would not have been respectively admissible in separate trials under R.S. 15:445 and 446, the defendant is entitled to a severance of the offenses. At the outset we note that evidence of the attempted second degree murder would have been admissible at the trial of the aggravated burglary during which the stabbing occurred because it forms part of the res gestae of that offense. See R.S. 15:447, 448. Evidence of the aggravated burglaries, however, would not have been properly admitted at the trial of the others, had they been tried separately. While the offense of aggravated burglary requires specific intent to commit a felony or theft (R.S. 14:62), intent was not a real and genuine contested issue at trial.² C. f. State v. Moore, 278 So.2d 781 (La.1973). The evidence of the other crimes would have a cumulative effect alone and only serve to depict the defendant's bad...