State v. Nichols

• Decision Date: 13 September 1976
• Docket Number: No. 57578,57578
• Citation: 337 So.2d 1074
• Parties: STATE of Louisiana v. Dewitt O. NICHOLS and Adrion D. Nichols.
• Court: Louisiana Supreme Court

Page 1074

337 So.2d 1074

STATE of Louisiana v. Dewitt O. NICHOLS and Adrion D. Nichols.

No. 57578.

Supreme Court of Louisiana.

Sept. 13, 1976.

Rehearing Denied Oct. 13, 1976.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Gen., Edwin O. Ware, Dist. Atty., Edward E. Roberts, Jr., Asst. Dist. Atty., for plaintiff-appellant.

J. Michael Small, Gravel, Roy & Burnes, Alexandria, for defendant-appellee.

MARCUS, Justice.

Dewitt O. Nichols and Adrion D. Nichols were jointly charged by bill of information with the crime of committing aggravated battery upon John Ray Martin, a Louisiana State Police Trooper, in violation of La.R.S. 14:34. The trial judge sustained the defendants' motion to quash the bill of information on the ground of former jeopardy. The state appeals from this adverse ruling.

We note, Ex proprio motu, that we lack appellate jurisdiction to entertain the state's appeal. In State v. James, 329 So.2d 713 (La.1976), we recently held that under article V, section 5(D) of the 1974 Louisiana Constitution, the state no longer has the right to invoke the criminal appellate jurisdiction of the supreme court for our review of final pre-conviction adverse judgments or rulings, except in criminal cases in which a law or ordinance has been declared unconstitutional. We stated in James that where the state desires review of such a judgment or ruling in a criminal case, application to this court for a writ of review under our supervisory jurisdiction is the proper procedure for it to follow. LaConst. art. V, § 5(A) (1974). However, since the state took this appeal before the date that the James decision was handed down (March 29, 1976), we elect to treat the state's appeal as an application for a writ of review.

The instant prosecution stems from an altercation on October 25, 1975 between defendants and Trooper Martin which developed after Trooper Martin placed Adrion Nichols under arrest for driving while intoxicated. The state alleges that Adrion Nichols and his son Dewitt, the passenger in the car at that time, fought the trooper and, during the course of the struggle, took his flashlight and radio microphone and struck him on the head with it several times. Additional troopers, responding to Trooper Martin's radio call for assistance, arrived at the scene, managed to subdue defendants, and placed them under arrest.

In addition to the present felony charge of aggravated battery upon Trooper Martin, both defendants, as a result of these incidents, were charged by bill of information with the misdemeanor offenses of simple criminal damage to property, in violation of La.R.S. 14:56, and resisting an officer, in violation of La.R.S. 14:108. Adrion Nichols was also charged with the misdemeanor of operating a motor vehicle while intoxicated, in violation of La.R.S. 14:98. On December 5, 1975, defendants entered pleas of guilty to all of the misdemeanor charges, and on January 21, 1976, sentences for these offenses were imposed.

The issue before us is whether this prosecution for aggravated battery, after pleas of guilty to the charge of resisting an officer, places defendants in double jeopardy. ¹

Both the Louisiana and federal constitutions provide that no person shall be twice placed in jeopardy of life or liberty for the same offense. U.S.Const. amend. 5; ² La.Const. art. 1, § 15 (1974). Article 596 of the Louisiana Code of Criminal Procedure states that double jeopardy exists in a second trial only when the charge in that trial is:

(1) Identical with or a different grade of the Same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or

(2) Based on a part of a continuous Offense for which offense the defendant was in jeopardy in the first trial.

(Emphasis added.)

Louisiana applies the 'same evidence' test for determining the identity of offenses where the plea of double jeopardy is raised. This test holds that two offenses are the same for double jeopardy purposes if the same evidence is required for the conviction of each offense. If one offense requires proof of additional facts which the other does not, then the accused may be tried and convicted on both offenses, State v. Cain, 324 So.2d 830 (La.1975), Citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), unless the gravamen of the second offense is Essentially included within the offense for which first tried, in which case the second prosecution is barred because of the former jeopardy. State v. Smith, 323 So.2d 797 (La.1975); City of Baton Rouge v. Jackson, 310 So.2d 596 (La.1975); State v. Didier, 262 La. 364, 263 So.2d 322 (1972); State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972); State v. Foster, 156 La. 891, 101 So. 255 (1924); State v. Roberts, 152 La. 283, 93 So. 95 (1922).

Since defendants have not yet been tried on the instant charge of aggravated battery, we do not, of course, have a trial transcript to determine whether the evidence required for their conviction of that charge is the same as that necessary for their conviction of resisting arrest. We do, however, have for that purpose the state's answer to defendants' motion for a bill of particulars, in which the state sets forth the facts that it intends to prove at the trial on the charge of aggravated battery as follows:

. . . (T)he State shows that at approximately 1:45 a.m. on October 25, 1975, Louisiana State Police Trooper J. R. Martin was headed South on Louisiana Highway No. 1 North, when he observed a vehicle headed North on said highway in the south-bound lane. The Trooper had to take evasive action to avoid a collision with the vehicle. The Trooper turned his vehicle around and followed the said vehicle, noticing his erratic maneuvers, and eventually stopped the vehicle in the vicinity of Rapides Station on Louisiana Highway 1 North. The passenger of the vehicle, later identified as Dewitt O. Nichols, got out of the vehicle on the passenger's side and came around behind said vehicle and asked to talk to the Trooper. The Trooper informed the passenger that he wanted to talk to the driver of the vehicle and not him. The Trooper then proceeded to obtain the driver's license from the driver and asked him to stop out of the vehicle and back to the Trooper's vehicle. As the driver, who was later identified as Adrion D. Nichols, got out of the vehicle, he staggered back to the front of the State Police vehicle and the Trooper noticed a strong odor of alcohol on the driver's breath, noticed that his eyes were bloodshot, that his clothes were disarranged and that he was unsteady on his feet. At that particular time, and after observing the driver, the Trooper placed Adrion D. Nichols under arrest for driving while intoxicated.

The Trooper brgan to place handcuffs on Adrion D. Nichols and noticed that the passenger, Dewitt O. Nichols, began approaching him from the rear. In order to avoid a confrontation at that time, the Trooper did not place the handcuffs on Adrion Nichols and instead asked Adrion Nichols to get into the rear seat of the State Police vehicle. The Trooper then asked Adrion Nichols if he had a preference as to a wrecker service to pick up his 1974 Ford vehicle that he was driving at the time he was stopped. Adrion Nichols informed the Trooper that he wanted Drewett Wrecker to pull his vehicle. The Trooper called Troop E Headquarters and informed them that the subject wanted Drewett Wrecker by request and began to fill out the wrecker request form. The Trooper was sitting in the front seat of the State Police vehicle while he was filling out the wrecker request form and he got out of the vehicle to get the license number off of the subject's pickup truck. He then returned to his vehicle and opened the door to the back seat of his vehicle and asked the driver to sign the wrecker request form. The driver started to get out of the vehicle to sign the request form and the Trooper informed him to stay in the vehicle and sign the form in the vehicle. At this point Adrion Nichols pushed the Trooper back away from the unit and got out of the State Police vehicle. As the Trooper was trying to get Adrion Nichols back into the vehicle, Dewitt Nichols grabbed him from the rear and a fight ensued between Dewitt Nichols and Adrion Nichols, both beating and biting the Trooper. The Trooper was fighting and trying to make his way into the State Police vehicle front seat in order to call on his radio for assistance. The Trooper finally managed to grab his radio microphone and call for help. Adrion Nichols grabbed the mike during the fighting on the front seat of the vehicle and pulled it out of the radio and hit the Trooper in the head several times with it. The passenger, Dewitt Nichols, wrestled the Trooper's flashlight from the Trooper and was beating the Trooper with it. During the fighting, both Adrion Nichols and Dewitt Nichols kept saying that they were going to kill the Trooper.

The state's answer to the bill of particulars is corroborated by the arrest reports of Trooper Martin and the police reports of Troopers Cotton, Alderman, and Tasser, the troopers who arrived to rescue Trooper Martin from defendants' attacks.

After carefully reviewing the facts that the state will attempt to prove at the trial of this case, we are convinced that defendants' plea of former jeopardy is without merit. Defendants committed the offense of resisting an officer, as defined by La.R.S. 14:108, ³ when Dewitt Nichols jumped on Trooper Martin's back, and when both he and Adrion Nichols beat and hit the trooper. Additionally, both defendants committed the offense of resisting an officer when they continually threatened Trooper Martin that they were going to kill him. All these aforesaid actions constitute, as alleged in the bill of information, the 'intentional obstruct(ion)' of Trooper Martin in his attempt...