State v. Rogers
Decision Date | 09 April 1979 |
Docket Number | No. 62957,62957 |
Citation | 375 So.2d 1304 |
Parties | STATE of Louisiana v. Marcel Joe ROGERS and Leo Rose. |
Court | Louisiana Supreme Court |
F. Irving Dymond, Dymond, Crull & Castaing, New Orleans, for Leo rose.
A. J. Boudreaux, 24th JDC Indigent Defender Board, Metairie, for Marcel Joe Rogers.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., G. Michael Grosz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
Defendants Marcel Joe Rogers and Leo Rose were charged in two counts by a short form bill of information with conspiracy to commit aggravated arson and that they did commit aggravated arson of the David Crockett Fire Station in Gretna, Louisiana, on August 21, 1972. La.Rev.Stat. 14:26 (1940) and 14:51 (1964). After trial by jury each was convicted of conspiracy and acquitted of the charge of aggravated arson, and both were sentenced to imprisonment at hard labor for eighteen months. Both defendants have appealed. By stipulation, all assignments of error are deemed to be urged for both defendants.
The Davy Crockett Fire Station was burned on August 21, 1972. In April 1976 the Office of the Jefferson Parish District Attorney received information that the fire may have been the result of arson. After investigation, defendants Fire Chief Leo Rose and fireman Marcel Joe Rogers were indicted. Several firemen were granted immunity from prosecution and testified as witnesses for the State.
The pertinent articles of the Criminal Code in effect on August 21, 1972 provided:
La.R.S. 14:26.
La.R.S. 14:51.
Rose's Assignments 1-6 and Rogers' Assignments 1 and 2:
Appellants contend that the trial judge improperly sustained the prosecution's denial of their requests for particulars.
In the first request for particulars pertinent to this appeal defendants asked:
"Does the State allege that your defendant damaged the structure in question by the use of an explosive substance or by setting fire to said structure?"
The State answered that it was not required to answer this request, and the trial judge upheld their response as good and sufficient.
The State submits in brief that counsel for defendant Rose were advised long before trial that the arson charged was committed by "setting fire" with a five-gallon can of gasoline. Rose's testimony that, in his opinion, "children breaking into the station" may have been responsible for the fire, and the fact that "police were responsible for having a kid convicted in another fire," is also referred to by the State to support their contention that the defendants had a well-planned defense to the effect arson was in fact committed but the fire was set by kids, not the defendants. This circumstance, the State argues, makes the method used to burn the structure irrelevant to the defense.
Nothing in the record supports the statement in brief that counsel for defendants were advised that gasoline was used to set fire to the structure. The Court may not consider matters which are not supported by the record.
As the trial judge points out in a per curiam to this defense contention, the crucial factor in the case at bar is that neither Rose nor Rogers was convicted of arson. The jury found only that they were guilty of a conspiracy to commit arson, thereby acquitting them of the crime of aggravated arson. Inherent in the jury's verdict, the trial judge states, is the fact that although Rose and Rogers conspired to have the structure burned, they did not actually damage, or aid or abet in damaging, the building, and there was no danger to human life. In either event, the trial judge was of the opinion that the failure of the State to disclose whether the structure was damaged by an explosive substance or by setting fire to it was not prejudicial. While prejudice may have resulted if defendants had been convicted of aggravated arson, damage to the structure was not an essential element of the conspiracy. Failure of the State to disclose how the damage occurred was not, therefore, essential to a defense against the charge of conspiracy to commit aggravated arson according to the reasoning of the trial judge.
This distinguishes the case at bar from the decision in State v. Mason, 305 So.2d 523 (La.1974), relied upon by the defense. That decision stands for the proposition that when a crime may be committed by either of two methods the defendant is entitled to learn from the State which method was used. Mason was convicted of aggravated arson and, except for the fact that under the circumstances of that case defendant knew the method used and no violation of constitutional rights resulted from the State's failure to furnish the information, the State would have been required to disclose which method was employed to damage the structure.
There is, moreover, overwhelming evidence to support the jury verdict in the instant case.
Thomas J. Thompson, a fireman who was given immunity from prosecution, testified that he was a member of the Davy Crockett Fire Company on August 21, 1972, the day it burned. He was at the central firehouse drinking that afternoon with Rose, Rogers and Fireman August Cuny. He heard Rose say that he dreamed the night before that the Davy Crockett firehouse had burned. Rose also said that it would be worth $500 if it did burn; whereupon Rogers said, "Don't worry about it, I'll take care of it." Later that afternoon Rose instructed the firemen to move the "steamer", a valuable antique pumper fire wagon, out of the Davy Crockett station and transfer it to the Central Station. He instructed them to tell whoever asked that the move was made to clean and polish the steamer for a parade, although no parade was known to be scheduled at the time.
After the "steamer" was moved, Thompson returned to the station where they discussed how they would fight the fire. When he was leaving that evening about 6 o'clock, Rose told Thompson to make sure the old lady who lived next door to the Davy Crockett station was taken to a place of safety when the fire alarm was sounded.
Following these events Thompson, Rogers, and Cuny drove to Rogers' residence where Rogers got a stack of newspapers. They then proceeded to the Davy Crockett station, and, while Cuny stood as lookout outside, Thompson and Rogers spread newspapers upstairs in the station and Rogers lighted them. The three then returned to the Central Station where they continued drinking.
After a while, when no alarm was sounded, Rogers, Thompson and Cuny returned to the Davy Crockett station where they saw the fire did not take. Rogers ran to his residence across the street and returned with a five-gallon can of gasoline. Rogers and Cuny went into the station house with the can and shortly thereafter came out. Cuny went home and Thompson and Rogers drove to the Central Station. On the way Rogers declared,
At Central Station they met Rose who asked Rogers if he had the fire started, and Rogers said, "Yes, I think I got it started good this time." Shortly thereafter Rose received a phone call from the chauffeur at the Davy Crockett Station asking him to come over. The chauffeur said he heard noises upstairs and refused to go up and investigate alone. Rose, Rogers, and Thompson then went to the fire station where, within minutes, the fire burst forth and engulfed the station.
Damage from the fire made necessary a major renovation costing $28,000.
Cuny corroborated Thompson's testimony in all essential details. He was also given immunity from prosecution. The testimony of these coconspirators is deemed to be assented to by Rose and Rogers. La.Rev.Stat. 15:455.
Dewey Gros was on duty as chauffeur (fire engine operator) at the Davy Crockett Station on August 21, 1972. At the Central Station that day, where he had gone to help clean the equipment, he overheard Rose say that he would pay anyone $500 to burn the Davy Crockett Station, and he heard Rogers say he would "burn it down." Gros saw the steamer being moved to the Central Station by Rogers, Cuny, and Thompson on orders from Rose.
Gros returned to the Davy Crockett Station and was on duty there when...
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