State v. Bosley

454 So. 2d 1245
CourtLouisiana Court of Appeal
DecidedAugust 22, 1984
Docket16316-KA
StatusPublished
Cited by6 cases

This text of 454 So. 2d 1245 (State v. Bosley) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bosley, 454 So. 2d 1245 (La. Ct. App. 1984).

Opinion

454 So.2d 1245 (1984)

STATE of Louisiana, Appellee,
v.
Michael R. BOSLEY, Appellant.

No. 16316-KA.

Court of Appeal of Louisiana, Second Circuit.

August 22, 1984.

*1246 Jones & Jones by James Garland Smith, Monroe, for appellant.

Michael J. Fontenot, Asst. Dist. Atty., Monroe, for appellee.

Before PRICE, JASPER E. JONES and NORRIS, JJ.

NORRIS, Judge.

Defendant, Michael Bosley, appeals jury convictions of attempted manslaughter in violation of La.R.S. 14:31 and 27 and armed robbery in violation of La.R.S. 14:64 and respective concurrent sentences of five and a half years at hard labor and forty years at hard labor without benefit of parole, probation or suspension of sentence assigning three errors:

(1) The court erred in denying the defendant's motion for new trial in that the verdict of guilty of Attempted Manslaughter was contrary to the law and evidence;
(2) the court erred in imposing a forty (40) year sentence for Armed Robbery in that the sentence is excessive and it is grossly disproportionate to the severity of the crime; [and]
(3) the court erred in allowing the introduction of the gun into evidence where a proper foundation had not been established or chain of custody.

FACTS

At approximately 2:45 a.m. on Sunday, May 9, 1982, Deputy Jack Lynch was the duty deputy at the Ouachita Parish Jail Extension, a minimum security jail facility, also known as the "P-Farm." While seated at his desk in his office, he observed his office door open and a masked individual garbed in dark clothing enter armed with a .38 blue steel revolver. This intruder then pointed the gun at Lynch and told him that if Lynch moved, he would be killed. Thereafter, the intruder instructed Lynch to open the "store," a commissary located on the premises for the inmates' use. Lynch then obtained his keys and unlocked the store and the money box bolted to the *1247 wall inside the store. Thereafter, Lynch was instructed to open a closet located inside of the office in which inmates' personal belongings, such as wallets, jewelry, etc., are kept alphabetically in brown manila envelopes which he did. When Lynch told the intruder that there was nothing in the closet, the intruder replied that he knew that the inmates' personal belongings were kept within that closet. At the intruder's instruction, Lynch opened the closet and placed envelopes from certain of the slots into a pillow case provided by the intruder. The intruder then instructed Lynch to open the office of the director of the facility. When Lynch responded that he had no key, Lynch was told to open the safe located behind the closet door which Lynch did. The intruder then opened the door of the safe himself and removed two boxes which contained inmate work release checks, receipts from produce sales and a bag containing petty cash used for change at the produce stand where the inmates sell produce grown on the farm. Included among the items removed from the P-Farm were cash from the store, certain inmates' belongings contained in the envelopes, change and currency from the safe and the receipts contained in the safe.

Thereafter, the intruder went to a closet where he obtained a pair of leg irons which he ordered Lynch to fasten around his right wrist. He led Lynch to the front of the director's office where he searched Lynch and removed $4.00 from his wallet. After attempting to "cuff" Lynch at two other locations, the intruder finally cuffed Lynch to a water fountain located in the dining hall of the facility. The intruder left the dining hall. While he was gone, Lynch removed a gun from his left boot. A few minutes later, the intruder returned. As he was walking through the door, he observed the gun in Lynch's hand and in response fired a shot in Lynch's direction which lodged itself in a wall some 15 feet from Lynch. The shot was fired while the intruder was backing out of the door and pulling it shut. Lynch fired three shots at the intruder who thereafter hastily departed on foot from the facility.

Because the actions of the intruder clearly indicated that he was a person familiar with the layout and the organization of the facility, Lynch was convinced that the intruder was a former inmate. After deliberation, Lynch reported to those investigating the crimes, that his assailant was the defendant.

The defendant was later arrested, charged with attempted first degree murder and armed robbery, tried on both counts, found guilty of attempted manslaughter and armed robbery, and sentenced.

ASSIGNMENT OF ERROR NO. 1

In connection with this assignment, defendant argues that the verdict of attempted manslaughter was contrary to the law and evidence because the State failed to offer any evidence which showed that the defendant had a specific intent to kill Lynch. It is further argued that the circumstances under which defendant actually fired his gun do not lead to an inference that the defendant actively desired to kill Lynch because the defendant had adequately disguised himself, had immobolized Lynch by handcuffing him to the water fountain and had every opportunity to kill or harm the deputy during the robbery but failed to do so. This argument is unpersuasive.

La.R.S. 14:27 provides:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall *1248 be sufficient to constitute an attempt to commit the offense intended.
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.
D. Whoever attempts to commit any crime shall be punished as follows:
(1) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than fifty years;
(2) If the offense so attempted is theft or receiving stolen things, and is not punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned for not more than six months, or both. If the offense so attempted is theft or receiving stolen things, and is punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned not more than one year, or both;
(3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

La.R.S. 14:31 provides:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection.

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Bluebook (online)
454 So. 2d 1245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bosley-lactapp-1984.