State v. Simmons
| Decision Date | 05 November 1982 |
| Docket Number | No. 81-KA-2990,81-KA-2990 |
| Citation | 422 So.2d 138 |
| Parties | STATE of Louisiana v. Clarence SIMMONS and Sammy Bernard. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Carmouche, Dist. Atty., Catherine M. Estopinal, Dale G. Cox, Asst. Dist. Attys., for plaintiff-appellee.
John Ford McWilliams, Jeanette Garrett, Shreveport, for defendant-appellant.
The convictions of these defendants, Clarence Simmons and Sammy Bernard, for attempted simple burglary of the Medic Pharmacy in Shreveport, Louisiana on December 9, 1978, is before us on this appeal for the second time. Originally charged with the completed offense and convicted of attempt, defendants on their first appeal succeeded in having their convictions reversed in this Court and new trials ordered.
We found reversible error in the trial court's failure to sustain defendant's challenges for cause of a prospective juror who was employed as a deputy sheriff. State v. Simmons and Bernard, 390 So.2d 1317 (La.1980).
On remand the bill of information was amended to charge attempted simple burglary of a pharmacy and defendants were again convicted of that crime by a twelve person jury.
Following the convictions Bernard was adjudged a third felony offender and sentenced to "a period of nine years ... as the law requires." Simmons was adjudged a fourth felony offender and sentenced "to be confined at hard labor for a period of natural life ... subject to the conditions provided by law."
In this joint appeal we find that only Simmons' assignments of error numbers 39 and 44 concerning his adjudication as a fourth felony offender and sentence to life imprisonment have merit. Therefore defendant Bernard's conviction and sentence will be affirmed. Simmons' conviction will be affirmed, but his sentence is set aside.
In this opinion we will treat defendants' common assignments relative to the trial court's refusal to give requested jury charges and relative to an asserted restriction of defense counsel's voir dire examination of prospective jurors; we will also treat Simmons' meritorious assignment attacking his adjudication as a fourth felony offender and concomitant illegal sentence to life imprisonment.
We find that none of the remaining assignments of error present reversible error, nor do any involve legal issues not governed by clearly established principles of law. They will be treated in an appendix which will not be published but which will comprise part of the record in this case.
Defendants contend that the lower court erred in refusing to give two requested jury charges. The trial judge instructed the jury that the only possible verdicts were "guilty of attempted simple burglary of a pharmacy" and "not guilty." The defense requested jury charge No. 1, which the trial judge refused to give, read, "In order to find the defendants guilty as charged you must find that an attempted unauthorized entry was made solely for the purpose of obtaining controlled dangerous substances as defined by law."
La.C.Cr.P. art. 802 requires that the judge charge the jury as to the law applicable in the case. State v. Clement, 368 So.2d 1037 (La.1979); State v. Marse, 365 So.2d 1319 (La.1978). Special requested charges are governed by La.C.Cr.P. art. 807 which provides, in part, that a special charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly pertinent and correct. State v. Green, 418 So.2d 609 (La.1982). This charge, however, must be supported by the evidence. State v. Telford, 384 So.2d 347 (La.1980). This is a corollary of the trial judge's basic obligation to charge the jury as to the law applicable to the case, under which he is required to cover every phase of the case supported by the evidence whether or not accepted by him as true. La.C.Cr.P. art. 802; State v. Miller, 338 So.2d 678 (La.1976).
Nevertheless, it is well-settled that requested charges which are already substantially given and covered by the trial court's general charge are properly refused. C.Cr.P. art. 807; State v. Matthews, 380 So.2d 43 (La.1980); State v. Mead, 377 So.2d 79 (La.1979); State v. Badon, 338 So.2d 665 (La.1976); State v. White, 254 La. 389, 223 So.2d 843 (1969).
The trial court's given charge defined simple burglary of a pharmacy according to the statute. It included the fact that an essential element of pharmaceutical burglary under La.R.S. 14:62.1 is the intended theft of substances enumerated under La.R.S. 40:961(7). The judge was therefore not required to give the defendants' requested charge which was essentially to the same effect.
Defense requested jury charge No. 2, which the trial judge refused to give, told the jury that criminal trespass, [R.S.-14:63.10] a misdemeanor which proscribes "[t]he unauthorized and intentional entry upon any [b]uilding ...." 1 is a lesser included offense for the charged crime, attempted simple burglary of a pharmacy, 2 and a responsive verdict which the jury was at liberty to bring in.
The trial judge was apparently willing to charge the jury that both criminal trespass and attempted simple burglary were responsive to the charged attempted simple burglary of a pharmacy. Because counsel for the defendants opposed the judge's giving the latter instruction, the judge determined that he would give neither.
The charged offense (attempted simple burglary of a pharmacy) is not one of those crimes listed at La.C.Cr.P. art. 814 as to which there are statutorily listed responsive verdicts. Criminal trespass does nonetheless appear to be a responsive verdict to simple burglary of a pharmacy under La.C.Cr.P. art. 815 since it is a lesser and included grade of the offense, even though just a misdemeanor, the greater offense facially including as it does all the elements of the lesser offense. La.R.S. 14:5; State v. Dauzat, 392 So.2d 393 (La.1980); State v. Booker, 385 So.2d 1186 (La.1980) on rehearing; State v. Turnbull, 377 So.2d 72 (La.1979); State v. McCoy, 337 So.2d 192 (La.1976); State v. Roberts, 213 La. 559, 35 So.2d 216 (1948). Criminal trespass includes the unauthorized and intentional entry upon any building, dwelling, etc., whereas simple burglary of a pharmacy entails the unauthorized entry of any building, warehouse, etc., used for the storage and/or dispensing of controlled dangerous substances with the intent to commit theft of those controlled dangerous substances.
However, criminal trespass is not clearly a lesser and included offense of attempted simple burglary of a pharmacy, the charge for which these defendants were prosecuted. In the oft-quoted clarifying definition of lesser and included offense in State v. Poe, this Court stated:
In reaching the conclusion in the instant case that a verdict of simple assault is responsive to the charge of attempted simple kidnapping, it was reasoned that ' * * * all that is required is that the greater offense must include all the elements of the lesser offense in order to make a verdict of the lesser offense responsive.' We now find that this statement is not entirely accurate for, as we observed in the Roberts case, the test is whether the definition of the greater offense necessarily includes all the elements of the lesser. Stated in another way for practical application, this merely means that, if any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive. 214 La. 606, 38 So.2d 359, 363 (1948), on rehearing.
There are circumstances which can be reasonably imagined in which a defendant could be convicted of the attempted crime of burglary or burglary of a pharmacy without the unauthorized and intentional entry required by the trespass statute.
Attempted simple burglary of a pharmacy could conceivably be accomplished by a person who does not actually go upon the premises. Under the Louisiana attempt statute, R.S. 14:27, mere preparation is not sufficient; however, an attempt conviction is possible if one, having the necessary specific intent, "does or omits an act for the purpose of and tending toward the accomplishing of his object ... and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose." Thus it is possible that a person, approaching an entrance or standing next to a window armed with burglary tools, coupled perhaps, with other evidence concerning his purpose, could be convicted under the attempt statute. Since the greater offense of attempted simple burglary of a pharmacy could possibly be committed without the perpetration of the lesser offense of criminal trespass, criminal trespass according to the jurisprudential definition is not truly a lesser and included offense of attempted simple burglary of a pharmacy. The judge would therefore not be required to charge the jury on criminal trespass under La.C.Cr.P. art. 803.
Furthermore defendant insisted that criminal trespass be charged, but he objected to the court's charging the jury on the more obvious lesser included offense of attempted simple burglary. Even were defendant correct, that criminal trespass is a lesser included offense of attempted simple burglary of a pharmacy, his requested charge containing criminal trespass but excluding attempted simple burglary was not wholly correct and pertinent. La.C.Cr.P. art. 807. Under these circumstances, the trial judge's not giving the charge that criminal trespass is a lesser included offense did not constitute reversible error.
By these assignments attorneys for the defense contend that the trial court erred in curtailing the defense voir dire...
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