State v. Pettle

• Citation: 286 So.2d 625
• Decision Date: 03 December 1973
• Docket Number: No. 53830,53830
• Parties: STATE of Louisiana v. Donald L. PETTLE.
• Court: Supreme Court of Louisiana

Page 625

286 So.2d 625

STATE of Louisiana v. Donald L. PETTLE.

No. 53830.

Supreme Court of Louisiana.

Dec. 3, 1973.

Alfred Octave Pavy, Opelousas, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Special Asst. Atty. Gen., Morgan Goudeau, III, Dist. Atty., for plaintiff-appellee.

BARHAM, Justice.

Donald Pettle was tried and convicted of attempted murder of Beverly Marks and sentenced to serve seven years in the custody of the Department of Corrections. That sentence was made to run consecutively to a twenty-one year sentence imposed upon the defendant in the Fifteenth Judicial District Court upon his plea of guilty to manslaughter of Mona Kilchrist.

Defendant, en route to Metairie, Louisiana from Fort Polk, near Leesville, Louisiana, on December 24, 1969, picked up a hitch-hiker, James Patterson, near Oakdale, Louisiana. The two stopped at the Rebel Lounge in Opelousas, Louisiana. Upon entering the lounge, the defendant proceeded to the men's rest room. Moments later he exited, seized a female bar attendant, Beverly Marks, and held a knife to her ribs in an attempt to force her to leave the lounge with him. While the defendant was holding Mrs. Marks, the victim of this particular crime of attempted murder, the lounge telephone rang and another female bar attendant, Mona Kilchrist, went to the telephone and answered the call. When the defendant's attention was diverted by the ringing telephone and Miss Kilchrist's movement to answer it, Mrs. Marks gained her release from the defendant and the defendant then seized Miss Kilchrist at the telephone. She was forced to leave at knife-point with the defendant and to enter his automobile. He drove away with her, with his knife drawn on her. Approximately one hour later Miss Kilchrist's body, nude and covered with stab wounds, was found near Lafayette on a road near the Evangeline Downs Race Track, a distance less than fifteen miles from the place where she was seized.

Some hours later, the defendant wrecked his automobile in Laplace, more than 100 miles distant from the place where the body was found. He was hospitalized because of the wreck and later placed under arrest. Officers from at least four jurisdictions participated in the investigation and arrest of the defendant. The defendant was permitted to plead guilty to manslaughter for the death of Miss Kilchrist in the Fifteenth Judicial District Court of Lafayette Parish, and received a sentence of twenty-one years. The trial and conviction we consider on this appeal from the Twenty-Seventh Judicial District Court, Parish of St. Landry, arose out of a charge of attempted murder of the first bar attendant, Mrs. Beverly Marks.

Twenty-seven bills of exceptions were reserved to rulings of the trial court. Nine of these bills were neither briefed nor argued, and are therefore considered abandoned.

BILL OF EXCEPTIONS NO. 2

This bill was reserved when the trial court denied defendant's motion to quash the information. Defendant's motion, based on a plea of former jeopardy, alleged that he had already been put in jeopardy for the killing of Mona Kilchrist (defendant had earlier entered a plea of guilty to manslaughter) and that the instant charge arose out of the same transaction or similar transaction or same offense.

Our Constitution, Article 1, Section 9, and the Fifth Amendment to the United States Constitution provide that no defendant may be placed in jeopardy twice for the same offense. Article 591 of the Code of Criminal Procedure reiterates this guarantee. Article 596 of the Code of Criminal Procedure outlines the requirements for double jeopardy. It provides:

'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.'

Comment (d) of the Official Revision Comment explains the necessity of Clause (2) of the above cited article. It reads:

'(d) Clause (2) of the above Art. 596 is necessary to prevent multiple prosecutions for continuous offenses. For example, possession of stolen goods or narcotics may continue over a long period of time and may involve more than one object. Yet, obviously there should be only one prosecution for what is in effect one criminal course of conduct.'

In the recent case of State v. Richmond, 284 So.2d 317 (decided September 24, 1973) this Court held that a plea of former jeopardy could not avail a defendant who had been previously tried and convicted of the murder of one individual and was later tried and convicted of the murder of the first victim's spouse, even though both murders arose out of the same transaction, an armed robbery of a small grocery. Our decision in State v. Didier, 262 La. 364, 263 So.2d 322 (1972), where a plea of former jeopardy was held to be well founded, was discussed in Richmond. In Didier, this Court stated: '* * * Where the gravamen of the second offense is essentially included within the offense for which first tried, the second prosecution is barred because of the former jeopardy. * * * '

In the instant case, the killing of Mona Kilchrist and the attempted murder of Beverly Marks were distinct and separate offenses, albeit they arose out of what may be considered a continuing course of conduct. The gravamen of the second offense for which defendant was held accountable clearly is not essentially included in the first offense. This bill of exceptions is without merit.

BILLS OF EXCEPTIONS NOS. 4, 13, 19 and 20.

Defense counsel reserved these bills when the trial court denied defendant's motion to suppress certain tangible evidence and when various items of physical evidence were thereafter introduced. The motion and the objections were based on an allegation that the items introduced were obtained as a result of an illegal search and seizure made without a search warrant.

The following evidence was introduced at the trial and objected to:

1. A knife--This weapon was used in the attempted murder of Beverly Marks and the murder of Mona Kilchrist. The knife was found at the scene of defendant's wrecked car in Laplace, placed under the car seat by a St. John the Baptist deputy and, one hour later, recovered by the same deputy at a wrecking service yard, to which the police had caused the wrecked automobile to be towed.

2. A ladies' chain belt--This evidence was recovered from underneath the seat of the defendant's car.

3. A red and white striped tee shirt--This evidence was seized from the defendant by Lafayette Parish Sheriff's Department personnel after defendant's arrest.

4. A pair of brown pants with a blond hair caught in the zipper--This article of clothing was seized from the defendant's person after his arrest.

5. A pair of underwear--This evidence was seized from the defendant after his arrest.

6. Hair found on the front seat of defendant's automobile--This item was seized by Lafayette Sheriff's Department personnel after it was sighted, in plain view, on the automobile seat.

The knife was initially found by a St. John the Baptist Parish deputy outside of the car at the scene of the accident. At the time, the deputy had no reason to believe that there was any connection between the weapon and the commission of any crime. The deputy testified, however, that when he picked the knife up off the ground, he put it under the seat of the car so that it would not 'fall into the wrong hands'. The deputy further testified that he later removed the knife from where he had placed it in the car, after the car had been towed to a garage, because he then learned that it was possibly involved as a weapon in a murder.

Clearly, no search was involved in the ultimate recovery of the knife from the automobile. When intially discovered, the knife was in plain view of a law enforcement officer who had a right to be at the location at which the view was obtained. State v. DiBartolo, 276 So.2d 291 (1973). The knife was placed out of 'plain view' by the same officer, who subsequently recovered the knife. At the time of the seizure, the automobile was in the constructive custody of the police, having been brought to the towing yard at their direction. Cf. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). We therefore believe that the knife, once in the lawful actual custody of the police, was, at the time of seizure, in constructive custody of the officer at the time of seizure and that the seizure does not contravene the Fourth Amendment guarantee against unreasonable searches and seizures.

The ladies' chain belt was recovered after defendant informed officers of its presence beneath the car seat. Defendant testified that he remembered giving a statement to the officers about the chain belt. The officer who had interrogated defendant testified that he was told of the existence and location of the belt and given consent to retrieve it. Under the circumstances, it affirmatively appears that the consent exception to search and seizure without a warrant is applicable.

The tee shirt, pants, and underwear were all recovered from defendant's person when he was booked by the Lafayette Parish authorities. Numerous federal circuit courts have ruled that a search of an arrestee is still incident to a lawful arrest when it is conducted within a reasonable time thereafter at the jail or place of detention rather than at the time and place of the arrest. See United States v. Gonzales-Perez, 426 F.2d 1283 (5th Cir. 1970) and numerous cases cited therein. We therefore believe that the seizure of defendant's clothes was reasonable and not in contravention of the Fourth Amendment.

The seizure of the hair found on the front seat of defendant's...