State v. Joseph

619 So. 2d 1229, 1993 WL 188944
Louisiana Court of Appeal·Decided June 2, 1993·No. CR 92-1381·Published·Cited by 4 cases

Opinion

619 So.2d 1229 (1993)

STATE of Louisiana, Plaintiff-Appellee,
v.
Bertrand JOSEPH, Jr., Defendant-Appellant.

No. CR 92-1381.

Court of Appeal of Louisiana, Third Circuit.

June 2, 1993.

*1230 Jerold Edward Knoll, Marksville, for State.

Dan B. McKay, Jr., Bunkie, for Bertrand Joseph, Jr.

Before LABORDE, THIBODEAUX and DECUIR, JJ.

LABORDE, Judge.

Defendant, Bertrand Joseph, Jr., appeals his conviction and sentence of simple arson. Finding no error on the part of the trial court, we affirm.

*1231 FACTS

Defendant, Bertrand Joseph, Jr., and his cousin, Gary Joseph, went to the home of Alex Shawn Antoine on January 19, 1992. Antoine stated that he did not like going to school and that he should burn it down. Defendant and Gary Joseph told him not to because "he would get nothing but trouble". They left Antoine's house to get earphones from his grandmother's house. As they passed the school, Antoine suggested they go in to get his earphones which had been confiscated by a teacher. Antoine and the defendant jumped the fence and entered the school near the cafeteria. They went to the office and Antoine dug through the drawers. Antoine asked the defendant to hold his earphones while he was digging through the drawers, and when Antoine found his tapes he asked the defendant to hold them. Antoine then broke the glass door to the vending machine in the hall across the office with a brick. Antoine put some chips from the vending machine in the bag with the tapes which the defendant was holding. Antoine told the defendant to go and defendant took off running. When defendant got to the door it was locked, and he returned to find Antoine had spread paper napkins on the floor and was lighting the trash can. The defendant also saw flames coming out of a closet. They both exited the building after Antoine busted open the door with a brick. After leaving the building, the defendant informed Gary Joseph about what had happened and all three ran, taking a shortcut back to Antoine's house. The defendant was later apprehended by the Marksville Police Department pursuant to an arrest warrant.

The defendant and Gary Joseph were charged by bill of information dated April 14, 1992, with simple arson causing damage in excess of $500.00 in violation of La.R.S. 14:52. On the same day, the defendant entered a plea of not guilty to the charge. On September 15, 1992, immediately prior to trial, the trial court granted the state's motion to sever the trial of co-defendant Gary Joseph. On the same day, a jury of twelve found the defendant guilty as charged. On October 6, 1992, the defendant filed a motion for post-verdict judgment of acquittal which was subsequently denied by the trial judge. On October 20, 1992, the trial court sentenced the defendant to fifteen years at hard labor. On November 9, 1992, the defendant filed a motion to reconsider sentence which was denied by the trial court on November 17, 1992. The defendant now appeals this conviction and sentence based on seven assignments of error.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends the trial court erred in severing his trial from his co-defendant, Gary Joseph. He argues it was error because it served no apparent purpose and is contrary to the interests of judicial economy. He further argues a part of the defense strategy was to allow the co-defendants to give joint testimony to corroborate and amplify defendant's statement that Alex Antoine started the fire without their participation and this joint testimony was impossible due to the severance.

La.C.Cr.P. art. 704 provides in pertinent part:

Jointly indicted defendants shall be tried jointly unless:

1) The state elects to try them separately;

In the instant case, following roll-call of the prospective jurors, the state moved that the defendant's case be severed from the case of Gary Joseph. The trial court granted this motion over the objection of defense counsel.

The granting or denial of a motion for severance rests in the sound discretion of the trial court and, absent a showing of clear abuse, this ruling will not be reversed. State v. Williams, 416 So.2d 914 (La.1982). In State v. Vigers, 441 So.2d 835 (La.App. 3d Cir.1983), the court found after a review of the record that there was no prejudice to the defendant by the granting of the severance. In the instant case, co-defendant asserted the Fifth Amendment privilege in refusing to testify and *1232 thus, did not prejudice the defendant as he could have refused to testify as a co-defendant had the case not been severed. Thus, we find the trial court did not abuse its discretion in allowing the severance. For the foregoing reasons, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, defendant contends the trial court erred in refusing to require co-defendants, Gary Joseph and Alex Shawn Antoine, to take the witness stand at the instance of the defendant. He argues this was error because a witness must assert his right against self-incrimination only as to specific questions.

The defendant bases his argument on La.R.S. 15:276 which provides: "No witness can be forced to criminate himself, but the judge is bound by the witness' statement that the answer would criminate him, when from the nature of the question asked and the circumstances of the case such statement can not be true." However, this article does not specifically provide a witness must assert the right against self-incrimination only as to specific questions.

In State v. Jones, 559 So.2d 492 (La.App. 5 Cir.1990), writ denied, 566 So.2d 981 (La. 1990), the court stated it was not error for the trial court to allow a blanket assertion by a co-defendant of his Fifth Amendment privilege where the co-defendant was charged with participation in the same crime as the individual on trial and it was apparent that the questioning would be devoted to a subject matter which would require the co-defendant to invoke the privilege. In so stating, the court reasoned as follows: "It is not necessary for a witness charged with participating in the same crime for which the defendant is being tried to assert the privilege on a question by question basis when it is apparent that the witness will be asked to testify only regarding matters which could be expected to require the invocation of the privilege." We find the trial court properly refused to require the codefendants, Gary Joseph and Alex Shawn Antoine, to testify after their attorneys indicated they would exercise their rights against self-incrimination.

ASSIGNMENTS OF ERROR NUMBERS THREE AND FOUR

By these assignments of error, the defendant contends the trial court erred in permitting the State of Louisiana to argue that the evidence it presented, primarily in the form of a recorded statement of the defendant, was not true and/or accurate. The defendant further contends the trial court erred in refusing to require, as to proceedings before the jury and in post-trial proceedings, that the statement of the defendant as to how the alleged crime occurred be taken as correct in the absence of any evidence to the contrary.

Initially, in regard to the defendant's assertion that the trial court erred in allowing the state to argue that the statement of the defendant was not accurate, we find that state did not argue that the defendant's statement was not true and accurate. The state pointed out that it was self-serving for the defendant to state that they only intended to burglarize the buildin

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State v. Joseph, 619 So. 2d 1229, 1993 WL 188944 (La. Ct. App. 1993).

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