State v. Nettleton
| Citation | 367 So.2d 755 |
| Decision Date | 29 January 1979 |
| Docket Number | No. 62491,62491 |
| Parties | STATE of Louisiana, Respondent, v. Larry NETTLETON, Terry Nettleton and Kerry Nettleton, Relators. |
| Court | Supreme Court of Louisiana |
Charles J. Hanemann, Henderson, Hanemann & Morris, Houma, for defendants-relators.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., for plaintiff-respondent.
The district attorney of Terrebone Parish received complaints that shrimp fishermen were being harassed while trying to operate their boats in the area of Bayou Barre. Accompanied by members of the State Police Water Patrol, an agent of the Louisiana Wildlife and Fisheries Commission, and an officer of the State Police Narcotics Division, the district attorney conducted a surveillance on the night of June 10, 1976 from a shrimp boat belonging to Mr. Aaron Pellegrin, one of the complainants. Based on the occurrences of that night, the State of Louisiana, through the district attorney for the Thirty-second Judicial District, Terrebone Parish, Louisiana, filed on July 2, 1976 twelve Bills of Information against three brothers, Kerry, Larry and Terry Nettleton, charging them with the following crimes:
Statute Allegedly Docket
"Defendant Crime Violated Number
--------------- ----------------------------- ------------------ -------
Kerry Nettleton Reckless operation of
a motorboat La.R.S. 34:851.9 63,398
Kerry Nettleton Operating a motorboat
without life jackets La.R.S. 34:851.8 F 68,399
Kerry Nettleton Operating a motorboat
without a fire extinguisher La.R.S. 34:851.8 G 68,400
Kerry Nettleton Operating a motorboat without
boat registration La.R.S. 34:851.4 A 68,401
Larry Nettleton Reckless operation
of a motorboat La.R.S. 34:8451.9 68,402
Larry Nettleton Reckless operation
of a motorboat La.R.S. 34:851.9 A 68,403
Larry Nettleton Operating a motorboat
without running lights La.R.S. 34:851.8 B 68,404
Larry Nettleton Operating a motorboat
without life jacket La.R.S. 34:851.8 F 68,405
Terry Nettleton Aggravated assult
with a motorboat La.R.S. 14:37 68,406
Terry Nettleton Operating a motorboat
without running lights La.R.S. 34:851.8 B 68,407
Terry Nettleton Reckless operation
of a motorboat La.R.S. 34:851.9 68,408
Terry Nettleton Reckless operation
of a motorboat La.R.S. 34:851.9 68,409"
The defendants moved to quash all twelve Bills of Information on the grounds that the Federal Boat Safety Act, 46 U.S.C.A., Sec. 1459, pre-empts the field of boat safety which the above state statutes purport to regulate. The district court denied the motion to quash. Defendants applied to the Louisiana Supreme Court for a writ of certiorari, which was denied for the reason that relators had an adequate remedy by review, in the event of conviction.
The twelve charges were consolidated and fixed for trial by jury of six members on April 5, 1978. Over defense objection, the Court severed the four charges against Kerry Nettleton, on the ground that the maximum cumulated imprisonment for the four charges against Kerry did not exceed six months. The trial of the charges against Kerry before a judge alone was postponed to a later date.
The charges against Larry and Terry proceeded to trial on April 5, 1978 before a jury of six members. Terry and Larry were each convicted of violating the charge of operating a motorboat without running lights, LSA-R.S. 34:851.8 B. They were acquitted of all other charges. The district judge imposed upon each the maximum fine of $25 and ordered that each pay one-half of the court costs, in default of which they were sentenced to serve a period of thirty days each in the parish jail.
All three defendants applied for writs of certiorari and review. Terry and Larry, the defendants who were tried and convicted on one charge each, rely on Assignments of Error 1 through 4 for reversal of their convictions and sentences. Kerry Nettleton, whose trial was severed over his objection, relies on Assignment of Error # 1, and he also argues in Assignment of Error # 5 that because the maximum cumulated fines for the four charges against him exceed $500, he is entitled to trial by jury of six.
In Assignment of Error No. 1, the defendants argue that the trial court should have granted the motion to quash the Bills of Information because the Federal Boat Safety Act, particularly 46 U.S.C.A., Sec. 1459, and the regulations promulgated thereunder, pre-empt the field of boat safety on navigable waters, on which La.R.S. 34:851.8 B purports to legislate. 46 U.S.C.A., Sec. 1459, relied on by defendants as the basis for federal pre-emption, reads as follows:
Section 1454 of the Federal Statute provides that the secretary may issue regulations establishing minimum safety standards for boats, equipment on boats, classes of boats, navigational lights, etc. The regulations contained in the Western Rivers Rules of the Road, 33 U.S.C.A., Sec. 301, et seq., provide in pertinent part:
The Federal Motorboat Act of 1940, 46 U.S.C.A., Sec. 526, et seq., provides for the classification of motor boats and the lights required thereon. The La.Statute under which defendants were charged, is Act 43 of 1960, LSA-R.S. 34:851.1, et seq., whose stated purpose is to promote safety in the use of motor boats and vessels, and to promote uniformity of laws relating thereto. Larry's shrimp boat is a motorboat, 32 feet long. Terry's shrimp boat is a motorboat, 23 feet long. LSA-R.S. 851.8 A, which provides for the classification of motorboats, and 851.8 B, which provides the lights required on each class, are identical to the Federal Motorboat Act of 1940, 46 U.S.C.A., Sec. 526b, insofar as they apply to the motorboats of Larry and Terry at issue here. Thus, the state statute complies with the requirement of 46 U.S.C.A., Sec. 1459, quoted above, that any state regulations be identical to the federal regulations, insofar as the charges at issue here are concerned.
Defendants' initial argument that the Federal Boat Safety Act pre-empts the field of boating safety on the navigable waters of the State of Louisiana has no merit. The Federal Statute, 46 U.S.C.A., Sec. 1459, expressly provides that the states may establish boat safety regulations, so long as they are identical to the federal regulations. Defendants cite no statute or jurisprudential authority to the contrary.
In a supplemental brief filed after oral argument in this Court, defendants concede that the regulations provided in the Federal Motorboat Act of 1940, 46 U.S.C.A., Sec. 526b, are identical with those under La. Revised Statutes 34:851.8 A and B. However, defendants now argue that the Secretary of Transportation has issued other regulations, 29 C.F.R. Sec. 25.01-10 and Sec. 24.05-15 dealing with lighting requirements on motorboats subject to the Western Rivers Rules. They argue that these rules require that motorboats carry either the navigational lights required by the Federal Motorboat Act of 1940, or, alternatively, those called for by the International Regulations For Preventing Collisions At Sea, 1972 (72 COLREGS), 33 C.F.R., Sec. 87.1, et seq., Appendix A. Defendants contend that since the Federal Regulations give the owner of the boat the option of two different kinds of lights, and the state statute does not, the state regulations are not identical to the federal and are pre-empted.
This argument has no merit. The purpose of the federal pre-emption provided in 46 U.S.C.A., Sec. 1459 is to promote boat safety through uniformity of regulations, including those applicable to navigational lights. It is inconsistent with this purpose to argue that since a federal regulation permits different optional lights, the state statute is pre-empted and therefore unenforceable because it does not also permit optional lights.
For the reasons stated, we find no merit in Assignment of Error No. 1.
In Assignment of Error No. 2, the defendants Larry and Terry argue that the trial judge erred in conferring with a juror, first without counsel, then with counsel, outside the defendants' presence, concerning the juror's ability to render a verdict.
The record shows that after the first day of the trial, a juror, Hank Verdin, went to the office of the trial judge and stated that he could not serve as a juror because he was a commercial fisherman, the same as the defendants, and he could not decide the case. The district judge immediately summoned counsel for the State and for the defense to his chambers and explained the problem. Counsel were requested to research the law and...
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