State v. Gaines

452 So. 2d 239, 1984 La. App. LEXIS 8847
CourtLouisiana Court of Appeal
DecidedMay 30, 1984
DocketNo. 83 KA 1426
StatusPublished
Cited by3 cases

This text of 452 So. 2d 239 (State v. Gaines) 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. Gaines, 452 So. 2d 239, 1984 La. App. LEXIS 8847 (La. Ct. App. 1984).

Opinion

WATKINS, Judge.

PACTS:

Defendant, Leroy Gaines, was charged by bill of information with theft of property having a value of more than $100.00 but less than $500.00, in violation of LSA-R.S. 14:67. Defendant entered a plea of not guilty, was. tried by a six-person jury and was found guilty as charged. He received a sentence of one year at hard labor, with sentence suspended, and was placed on active supervised probation for two years subject to special conditions: (1) that he serve six months in the parish jail, to be on work release on those days which he is working and (2) that he pay a fine of $1,000.00. Defendant now appeals his conviction and sentence, alleging four assignments of error, as follows:

1. The trial court erred when it denied defendant’s objection to suppress two statements made by defendant.

2. The trial court erred when it allowed the amended bill of information to be read to the jury as said bill of information had been amended by the district attorney in open court without defendant or his counsel present.

3. The trial court erred in overruling defendant’s motion for a post-verdict judgment of acquittal.

4. The trial court erred when it imposed an excessive sentence.

STATEMENT OF THE CASE:

On December 12, 1982, defendant was employed as a laborer in West Feliciana Parish. On that day, he arrived at work, picked up his pay check envelope and went on into his work station. A short time [241]*241later, he noticed that his envelope contained two pay checks: his own and a check in the sum of $397.51 made payable to J.B. Robertson. He pocketed both checks and, later that day, gave the second check to a co-worker, Bobby Kelly, who retained the check. On December 20,1982, Bobby Kelly told defendant he had the check signed, and at lunch break that day the two men went to the Bank of Commerce in St. Francisville, where Bobby Kelly cashed the check. When the two men left the bank, defendant received approximately half the money from Bobby Kelly. Defendant immediately spent his half.

Three months later, defendant was questioned by his Security Supervisor, who testified that defendant told him the whole story. Defendant then went to the bank, offered to make restitution and, pursuant to request by the sheriffs office, voluntarily went down to the police station and answered questions about the Robertson check. After being given his Miranda rights, defendant gave a statement to investigators. Defendant was arrested and charged with theft of property having a value of more than $100.00 and less than $500.00.

Testimony at trial revealed that defendant’s employer had issued another pay check to J.B. Robertson on the afternoon of December 12, 1982, and had issued a stop payment on Mr. Robertson’s check received by defendant. After Bobby Kelly cashed the Robertson check, it was forwarded to the payor bank in Baton Rouge, which, pursuant to the stop payment order, refused to reimburse the St. Francisville Bank for the amount paid out to Bobby Kelly on December 20, 1982.

ASSIGNMENT OF ERROR NO. 1:

Defendant contends that the trial court erred when it denied defendant’s objection at trial to the admission into evidence of two statements made by defendant marked “State 2” and “State 3-A” 1 on the grounds that the said statements were not knowingly, freely or voluntarily made. Defendant submits that consideration of these statements by the jury violated defendant’s rights guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. Defendant argues that he was indirectly coerced into signing the statements when Deputy Sheriff Cutrer requested that defendant sign the document containing defendant’s statement which Officer Cutrer had written as defendant spoke. Further, defendant contends he did not know whether or not the statements contained exactly what he had said due to his impaired ability to read.

Defendant makes no complaints of police brutality, police promises or police conduct designed to produce a confession which would not be a voluntary product of one’s own choice, nor that he was an illiterate or possesses a low I.Q. Rather, defendant argues that his lack of an ability to read well affected his understanding at the time he gave his statements to the deputy sheriff.

Before a confession or inculpato-ry statement can be introduced into evidence, the state has the burden of affirmatively proving that it was made freely and voluntarily and not made under the influence of fear, ‘duress, intimidation, menaces, threats, promises, or inducements. State v. Taylor, 422 So.2d 109 (La.1982).2 When the issue on appeal is whether an accused’s level of intelligence precludes him from effectively understanding the consequences of his oral statement transcribed into a written confession much weight is accorded the trial court’s assessment. State v. Le-Fevre, 419 So.2d 862 (La.1982). The credibility choice of the trial court in ruling on [242]*242the voluntariness of a confession will not be disturbed unless clearly erroneous. State v. Wright, 441 So.2d 1301 (La.App. 1st Cir.1983).

In light of the uncontradicted testimony that the statements were made freely and voluntarily after defendant had been duly advised of Miranda rights, we conclude that the state has borne the burden of proving that defendant gave the statements freely and voluntarily. Thus, the trial court was correct in denying defendant’s objection to suppress defendant’s in-culpatory statements. This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2:

Defendant contends that the trial court erred when it overruled defendant’s objection to the reading of the amended bill of information before the jury. Defendant argues that, because the original bill of information was amended in open court by leave of court and outside the presence of defendant and his counsel, defendant was denied his right to be present at arraignment and represented by counsel at those proceedings. Hence, defendant argues that his rights as guaranteed by the Sixth Amendment to the U.S. Constitution were violated.

The record shows us that the bill of information originally read: “LEROY GAINES committed theft of a payroll check, made payable to J.B. Robertson, in the amount of $397.51”. This bill of information was amended the day before the trial began by the district attorney, with leave of court, in open court, to read: “LEROY GAINES committed theft by fraud in the amount of $397.51 from the Bank of Commerce of St. Francisville”. Additionally, the date of the alleged theft was amended from December 12, 1982, to December 20, 1982.

The record substantiates defendant’s claim that neither defendant nor his counsel was present in open court when the bill of information was amended. Further, there is no indication in the record that defendant was rearraigned on the amended charge. Therefore, there are two issues: whether the trial judge acted properly in allowing the amendment and whether or not defendant was entitled to be rear-raigned on the amended bill of information.

A bill of information or indictment may be amended, even substantially, before the first prospective juror is sworn and examined. It appears that it is totally unnecessary that a second arraignment be held, even if the amendment of the bill of information or indictment be one that touches substance. State v. Bluain, 315 So.2d 749 (La.1975); State v.

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Related

State v. Jones
587 So. 2d 787 (Louisiana Court of Appeal, 1991)
State v. Leason
477 So. 2d 771 (Louisiana Court of Appeal, 1985)
State v. Gaines
455 So. 2d 1179 (Supreme Court of Louisiana, 1984)

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Bluebook (online)
452 So. 2d 239, 1984 La. App. LEXIS 8847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gaines-lactapp-1984.