State v. Sepulvado, 58471

• Decision Date: 24 January 1977
• Docket Number: No. 58471,58471
• Citation: 342 So.2d 630
• Parties: STATE of Louisiana v. Joseph Clayton SEPULVADO.
• Court: Louisiana Supreme Court

Page 630

342 So.2d 630

STATE of Louisiana v. Joseph Clayton SEPULVADO.

No. 58471.

Supreme Court of Louisiana.

Jan. 24, 1977.

Rehearing Denied March 2, 1977. ^*

James B. O'Neill, Zwolle, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., E. L. Edwards, Jr., Asst. Dist. Atty., for plaintiff-appellee.

SUMMERS, Justice.

In the early morning hours of June 28, 1975 two officers of the Bossier Parish Sheriff's Department were parked alongside Highway 80. A Chevrolet went by at a slow rate of speed. The officers began to follow the car because their experience indicated that people going that slowly late at night were either drunk or lost.

After following for several miles, they observed the Chevrolet weaving from lane to lane so they ordered the driver, who was accompanied by his wife, to stop. The driver of the car, defendant, was asked to produce his driver's license, but he stated that he did not have it with him. Defendant did not appear to be drunk, but the officers did detect the odor of alcohol on his breath and noticed a pistol in the front seat of the car. The gun was seized by the officers for their protection.

They then called for a report on the gun and learned that the gun was stolen. They also learned that defendant was driving with a revoked license. Defendant was then arrested and handcuffed. Search of his person produced bullets, money and a key to the trunk of the car. When defendant gave the officers permission to open the trunk of his car, he told them they would find two bodies there. A search of the trunk confirmed this fact and defendant and his wife were transported to the parish jail.

According to the State's evidence the defendant, on the night that he was arrested, told sheriff's deputies that earlier that day, June 27, 1975, he and his wife, Oneda, had accompanied James Michael Sepulvado, a cousin of the defendant, and Bonita Knighton in their car, leaving Bossier City. The reason for the trip was to find a suitable place in which to shoot tin cans with the guns they had in their possession.

Upon arrival at a junkyard near Stonewall in DeSoto Parish the couples began drinking beer and shooting tin cans. James Sepulvado, who was then shooting a .38 caliber pistol, turned his gun on the defendant, Joseph Sepulvado, in a menacing manner. The defendant reacted by kicking the gun out of James' hand, and then shot him in the back with his .44 caliber rifle. Bonita reached for the pistol dropped by James, and the defendant then shot her. The incident occurred at about 6:00 p.m. Thereafter defendant hid the bodies in the bushes nearby and he and his wife returned to James' car and drove around for several hours, drinking more beer. At approximately 10:00 p.m. that night, they returned to the junkyard and placed the two bodies in the trunk of the car. They were later apprehended in Bossier Parish.

An indictment by the grand jury of DeSoto Parish filed September 25, 1975 charged in two counts that Joseph Clayton Sepulvado committed first degree murder of James Michael Sepulvado and Bonita Knighton on June 27, 1975, a violation of Article 30 of the Criminal Code. After trial by jury a verdict of guilty was returned on both counts. Defendant was then sentenced to death on both counts.

In his opening statement the District Attorney advised the jury that the prosecution's case was based upon Article 30(4) of the Criminal Code, requiring that the State prove the offender had a specific intent to kill or to inflict great bodily harm upon more then one person.

Assignment 1

Prior to arraignment defendant filed a motion to quash the indictment alleging that the indictment charged two crimes, contrary to the declaration in Article 493 of the Code of Criminal Procedure that 'No indictment shall charge more than one offense . . ..' The motion further alleged that the indictment failed to comply with the formalities required for indictments set forth in Articles 462, 464 and 465 of the Code of Criminal Procedure in that the indictment failed to disclose the date of commencement of prosecution.

The trial judge denied the motion to quash. The defense assigns as error that 1) the indictment was fatally defective, for it failed to disclose the date of the commencement of the prosecution; and 2) it contained a joinder of offenses contrary to the procedural law in effect at the time of the offenses.

The claim that the indictment fails to disclose the date of commencement of the prosecution is without merit. The copy of the indictment in the record discloses that it was formally filed by the grand jury on September 25, 1975. A prosecution for an offense punishable by death can only be instituted by a grand jury indictment. La.Const. art. I, § 15; La.Code Crim.Pro. art. 382. The date of institution is the date the indictment is returned by the grand jury in open court. In this case, therefore, the date of commencement of prosecution is September 25, 1975, the filing date shown on the indictment.

To support the claim that the indictment is contrary to the procedural law defendant relies on Article 493 of the Code of Criminal Procedure in effect at the time of the offenses. On June 27, 1975, when this offense occurred, this article provided that 'No indictment shall charge more than one offense . . ..' However, the article was amended by Act 528 of 1975 to provide that

'Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.'

Act 528 of 1975, amending Article 493, was signed by the Governor on July 17, 1975 and became effective September 12, 1975. As previously noted, the indictment was returned on September 25, 1975, thirteen days after the effective date of the amendment. Because the amending act permitting multiple billing became effective after the date of the crime, the defense contends that to apply its provisions retroactively to him is contrary to the prohibition against ex post facto laws contained in Section 23 of Article I of the Louisiana Constitution of 1974 and Section 9 of Article I of the Constitution of the United States.

The amendment is an ex post facto law, according to the defense, because the amendment 'alters the situation of the accused to his disadvantage', a factor found to be characteristic of ex post facto laws in State v. Ferrie, 243 La. 416, 144 So.2d 380 (1962) and State v. Caldwell, 50 La.Ann. 666, 23 So. 869 (1898).

The State's position is that the amended article is procedural in nature and not substantive. Procedural laws, as distinguished from substantive laws, the State contends, can have retroactive effect without offending the ex post facto provisions of the constitutions. And, the indictment having been returned on September 25, 1975, after the effective date of the amendment, the prosecution was properly instituted in accordance with the amendment.

Procedural laws relate exclusively to questions of remedy and, in criminal cases, pertain to the method prescribed for the conduct of the prosecution. Enactments of this nature may regulate the mode of prosecution after their effective date and not offend the prohibition against ex post facto laws, for no one has a vested right in a mere mode of procedure. Todd v. State, 228 Ga. 746, 187 S.E.2d 831 (1972). See also Fithian v. Centanni, 159 La. 831, 106 So. 321 (1925).

On the other hand, liability for criminal conduct attaches at the moment that the crime is committed. Therefore, laws passed after the offense may not work to either redefine or increase the severity of punishment for the crime. To do so would impair substantive rights. Such a law would violate the prohibition against ex post facto laws of the Louisiana and the United States Constitutions.

An ex post facto law, by definition, is one which is passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed. Black's Law Dictionary 662 (Rev.4th ed. 1968). See also La.Civil Code art. 8.

Certain criteria for determining if a law is ex post facto have been established. The ex post facto prohibition comes into effect when a law makes an act criminal which was innocent when done and punishes such action; or aggravates a crime or makes it greater than when committed; or changes the punishment and inflicts a greater punishment than the law in effect when the crime was committed; or alters the rules of evidence to receive less or different testimony that the law required at the time the offense was committed in order to convict. Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). A fifth category holds that any law is considered ex post facto which is enacted after the offense was committed and which alters the situation of the accused to his disadvantage. Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1882); Payne v. Nash, 327 F.2d 197 (8th Cir. 1964); State v. Ferrie, 243 La. 416, 144 So.2d 380 (1962); 16A C.J.S. Constitutional Law §§ 440--46 (1956).

The problem involved in deciding whether a procedural law is ex post facto was broadly stated by Mr. Justice Stone in Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925);

'Just what alterations of procedure will be held to be of sufficient moment to transgress the constitutional prohibition cannot be embraced within a formula or stated in a general proposition. The distinction is one of degree. But the constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation . . . and not to...