State v. Quebedeaux

• Decision Date: 29 November 1982
• Docket Number: No. 82-KA-0072,82-KA-0072
• Citation: 424 So.2d 1009
• Parties: STATE of Louisiana v. Floyd QUEBEDEAUX.
• Court: Louisiana Supreme Court

Page 1009

424 So.2d 1009

STATE of Louisiana v.Floyd QUEBEDEAUX.

No. 82-KA-0072.

Supreme Court of Louisiana.

Nov. 29, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Bernard E. Boudreaux, Jr., Dist. Atty., J. Phil Haney, Asst. Dist. Atty., for plaintiff-appellee.

Keith Comeaux, New Iberia, for defendant-appellant.

CALOGERO, Justice.

Defendant appeals his conviction by a six member jury of simple burglary in violation of La.R.S. 14:62 and his sentence to twelve years at hard labor.He argues that the trial judge erred in denying his motion for a new trial based on newly discovered evidence, and also that his twelve year sentence is excessive.Because the record does not reflect that the trial judge took into account any mitigating circumstances before imposing the maximum sentence allowed under La.R.S. 14:62, we vacate the sentence and remand the case to the district court for resentencing.The conviction is affirmed.

By bill of information, the state charged defendantFloyd Quebedeaux with the December 15, 1980, simple burglary of Kaizer's Place.¹

At trial the state adduced the following information.Jean "Kaiser" Perez closed his pool hall, located near Breaux Bridge, Louisiana at 2:00 a.m. on December 15, 1980.Between then and 5:00 a.m., the rear window was removed and a microwave oven, a Magnelite pan, a rice cooker, boudin sausage and other items were stolen.²

A Louisiana state trooper had been parked in the vicinity on the shoulder of the road around 4:25 a.m. the same morning writing accident reports.He noticed a truck parked in front of the pool hall.The truck's driver exited and walked toward Kaiser's.For a time he was out of sight behind some tall grass but then a person returned to the truck, put something in the rear and climbed into the driver's side.Another person came from the building, also placed something in the rear of the truck and entered the truck on the passenger side.As the truck started and drove past, the trooper saw more definitely that it was a blue Ford with two white males inside.The trooper followed the truck.A check on the license number indicated that the truck was registered to defendant, Floyd J. Quebedeaux of Route 2, Box 344, Arnaudville, Louisiana.An inspection of Kaiser's revealed that the front door lock had been damaged and the rear window had the glass completely broken out.

When the Sheriff's Department took over the investigation, Deputy Romero and others went to the defendant's neighborhood.Quebedeaux's blue Ford pick-up was parked in his driveway.After the deputies had been watching the house for about thirty minutes, the defendant emerged and drove the truck over to ask the deputies what was "going on."It was then that Romero saw the Magnalite pan and rice cooker in the rear of Quebedeaux's vehicle.Deputy Frederick advised defendant of his rights.

Defendant told the deputy that he and his wife had picked up his brother-in-law in Baton Rouge three days earlier and had returned with the items in the truck.He also said that he and his brother-in-law, Richard Bardsley, had been "headlighting" rabbits at about 2:00 or 2:30 a.m. that morning near Breaux Bridge and that a state trooper had followed them.

After trial, a jury returned a verdict of guilty.Following his conviction and prior to sentencing, defendant filed a motion for a new trial alleging the discovery of newly found evidence.After a hearing, the trial judge denied the motion for a new trial.Thereafter the judge sentenced defendant to twelve years at hard labor.

ASSIGNMENT OF ERRORNO. 1

By this assignment of error defendant contends that the trial court erred in denying his motion for a new trial.

Attached to defendant's new trial motion was an affidavit by his brother-in-law, Richard Bardsley.In this affidavit, Bardsley (who was charged with defendant for the burglary in this case) stated that he and defendant had gone looking for jobs in the afternoon.They had stopped at a lounge (Theriot's) in Breaux Bridge where Quebedeaux had met friends and begun playing cards.Bardsley became bored and wanted to go "spotlighting."Defendant told him to take the truck, fill it with gasoline so there would be enought to go job-hunting the next day, and go on without him.Since Bardsley did not know where to get gasoline "at that late hour", someone at the bar offered to go with him.If Bardsley did not return to the bar before closing time, Quebedeaux said he would hitch a ride home.

The affidavit continues that Bardsley and the unidentified man who left with him drove to a place in Church Point where the hunting was supposed to be good.Bardsley shot nine rabbits and headed back toward Breaux Bridge.On the way a rabbit ran across the road.To get one last rabbit, Bardsley stopped the truck, got out and followed the rabbit on foot.Bardsley entered the rear of a building where a window and frame had been dismantled.On the way out, he took a rice cooker and a pot which he then put in the rear of the truck.Bardsley's affidavit states that the other man was driving the truck at this time but after Bardsley put the things in the back of the truck, they switched places and Bardsley resumed driving.On the way back to Arnaudville, Bardsley's companion indicated that he thought that they were being followed.Bardsley dropped off the unidentified man and continued to defendant's house where he hid the rabbits and knocked on the door.When Quebedeaux answered the door, Bardsley told him about the rabbits and about being followed by the state trooper.The defendant became angry so Bardsley "thought it best not to discuss anything else."When the defendant was "picked up on suspicion of burglary," Bardsley explained in the affidavit that he had been afraid to tell anyone about the events.Now, however, it bothered him that his brother-in-law had been found guilty of something he had not done.

At the hearing on the new trial motion, Bardsley took the stand but pleaded the fifth amendment.³The notary before whom the affidavit was signed identified Bardsley as the man who had signed it in her presence.Mrs. Quebedeaux, defendant's wife, also testified at the hearing, (defendant having waived the inter-spousal privilege of La.R.S. 15:461).Mrs. Quebedeaux stated that she had accompanied Bardsley, her sister's husband, to the notary's office where he signed the affidavit.Mr. Daniel Guidry, an assistant district attorney, testified that before trial Quebedeaux wrote in a letter to the district attorney that he and Bardsley had been hunting rabbits the night of the burglary and that they had been followed by the State Police.Following this testimony, the trial judge continued the hearing.

When the hearing resumed, Bardsley decided to testify on behalf of Quebedeaux.Bardsley's initial testimony recounted the same sequence of events as had his affidavit.Additionally, he admitted that he had been convicted of receiving stolen goods, but denied having served time in the penitentiary.Bardsley also said that while he and defendant initially had the same attorney he had never revealed to the attorney that he, not the defendant, had committed the burglary.

Upon cross-examination, Bardsley could not remember the names of any of the peoplehe and defendant had seen in Theriot's Lounge; neither could he remember places they had gone to look for jobs or the people with whom they had spoken.He explained that Quebedeaux knew the people and had done the talking.He and defendant left home about 9:30 a.m. and arrived at Theriot's around 1:00 p.m. or 2:00 p.m. in the afternoon.From then until 1:00 a.m. the next morning, according to Bardsley, he drank beer, talked with people and shot pool, and watched Quebedeaux play cards.When Bardsley left Theriot's, he did take someone with him to show him the way to Lafayette to buy gasoline but he did not know the man's name.After buying gasoline, the two returned to Breaux Bridge to hunt rabbits.

On further cross-examination, Bardsley said that he had told defendant about hunting and about taking the Magnalite pan and the rice cooker from the building.He also said that he had told the attorney who initially represented him and defendant"the same which is stated--well in my statement."On re-direct examination, Bardsley said that he had been available to testify at defendant's trial and would have done so.

In denying the new trial motion, the trial judge found the allegedly newly discovered evidence to be "incredible, to say the least," although admittedly Bardsley had put himself in a precarious position since he still faced trial on the burglary charge for this same incident.⁴The judge found it hard to believe that Bardsley had spent three or four hours "spotlighting rabbits" with a total stranger without any idea of the man's name.If Bardsley's testimony were correct and defense counsel knew about this story, the judge then found it equally hard to believe "that an attorney would not have taken advantage of such information to look up witnesses who could have established the innocence of Floyd Quebedeaux."Any one of several people could have been called at trial to confirm this story.Such people include the co-participant in the rabbit hunt or those with whom Quebedeaux played pool and cards until all hours of the night.The court also found it unlikely that defendant, as related by Bardsley, would have given up his truck to his brother-in-law while he was about fifteen miles from home with only the prospect of hitchhiking should Bardsley fail to return.Added to this was the assistant district attorney's testimony about the letter wherein Quebedeaux alleged that he went rabbit hunting with Bardsley the night of the burglary.In summary, the judge stressed that were this story true, Quebedeaux would surely have produced witnesses confirming his playing cards at Theriot's Lounge on the night the crimes were committed...