State v. Richardson

616 So. 2d 225, 1993 WL 88214
CourtLouisiana Court of Appeal
DecidedMarch 17, 1993
Docket92-KA-836
StatusPublished
Cited by5 cases

This text of 616 So. 2d 225 (State v. Richardson) 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. Richardson, 616 So. 2d 225, 1993 WL 88214 (La. Ct. App. 1993).

Opinion

616 So.2d 225 (1993)

STATE of Louisiana, Plaintiff/Appellee,
v.
Elmer RICHARDSON, Defendant/Appellant.

No. 92-KA-836.

Court of Appeal of Louisiana, Fifth Circuit.

March 17, 1993.

*226 Dorothy Pendergast and Ronald J. Bodenheimer, Asst. Dist. Attys., Parish of Jefferson, Gretna, for plaintiff/appellee.

Arthur Harris, New Orleans, for defendant/appellant.

Before GAUDIN, DUFRESNE and GOTHARD, JJ.

GOTHARD, Judge.

Defendant, Elmer Lee Richardson, was charged by bill of information with five counts of attempted first degree murder in violation of LSA-R.S. 14:27, 14:30.[1] He was arraigned on April 4, 1991 and pled not guilty. Prior to the commencement of trial on March 17, 1992 the State entered a nolle prosequi as to three of the five counts and defendant went to trial on the remaining two. At the conclusion of the two day trial, the jury returned a verdict of guilty of attempted manslaughter on both counts. Subsequently, on May 26, 1992 the trial court sentenced the defendant to serve seven *227 years at hard labor. However, the court suspended five of the years, placed the defendant on active probation for five years and ordered that the defendant serve the two remaining years without benefit of parole, probation or suspension of sentence. Defendant appeals his conviction and sentence. We affirm.

FACTS

On the early morning of January 19, 1991, several officers of the Gretna Police Department met in order to formulate a plan to execute a search warrant which had been obtained in their investigation of illegal gambling being conducted at the Hop-Loi Bida, a pool hall located in Gretna, Louisiana. Having learned through surveillance that there were armed security guards stationed at the entrance which consisted of two glass doors and that the entrance was kept locked and only opened by the guards in order to allow customers to enter and exit, the officers decided to rush the entrance when the door was opened "thereby using the element of surprise."

After the officers arrived at the Hop-Loi Bida, Officer Contranchis positioned his unit "across the parking lot" where he could observe the entrance while the other officers composing the entry team gathered in the alley along side the building. Subsequently, upon observing a security guard, later identified as the defendant, open the door for a customer to exit, Officer Contranchis gave the radio signal to the entry team to advance. The team, composed of Officers Lloyd, Covell, Dunn, Boudreaux and Koenig, "rounded out the alleyway" and ran towards the entrance shouting "Police. Search Warrant." All officers were dressed in police vests bearing the City of Gretna Police insignia except for Officer Koenig who was in uniform. When the defendant observed the approaching officers, he stepped inside and attempted to close the door behind him, but before he could do so Officer Lloyd grabbed the door handle and shouted "Police. Search Warrant. Open the door." The two men then struggled over the door as Officer Lloyd continued to shout; however, the defendant was eventually able to lock the door.

Thereafter, the defendant walked towards the entrance to the back room and shouted to the customers. He then turned around and fired two shots in the direction of the officers who were standing in front of the entrance. One bullet struck the metal frame of one of the doors directly in front of Officer Dunn, and the other one struck the wall surrounding the doors behind which Officer Boudreaux was standing. To ensure the safety of customers who had entered the front room with the defendant, the officers did not return fire.

At the same time the defendant fired upon the officers, Officer Boudreaux struck one of the doors with a ramming device. But, the door did not shatter and a second strike only punctured a hole in it. Subsequently, the other security guard unlocked the door. When the officers entered the building, the defendant dropped to the ground and relinquished his weapon. The defendant was then apprehended.

On appeal the defendant assigns three errors. In the first assignment defendant contends that the trial court erred in refusing to give defendant's requested special jury instructions concerning aggravated assault and self-defense.

Prior to closing argument the trial judge noted that he had made available to the state and defense copies of the jury charges, except the charge on self-defense which would be produced later. Defense counsel objected stating the following:

We had requested in chambers that the Court include a charge relative to the offense of aggravated assault. The Court had denied that request and for the record we though it was appropriate because it was an element that is not responsive, but we felt is properly placed before the jury because if they felt that what the defendant did was, in fact, an aggravated assault then they would understand that they had to find him not guilty because it is another crime for which he has not been charged.
*228 Second, we object to the Court's refusal to use the proposed Jury Charges No. 1, 2, 3, and 5 introduced by the defense.

Subsequently, when the judge asked both counsel if they had seen the charge on self-defense, defense counsel had no objection to the charge nor did he indicate on the record that he had submitted a proposed charge on self-defense. In brief to this court defendant asserts that he requested a special jury charge on self-defense pursuant to LSA-R.S. 14:19. However, those jury charges were not made a part of the record.

Because only that which is in the record may be reviewed by the court, State v. Oubichon, 422 So.2d 1140 (La.1982), the issue concerning the denial of a charge on self-defense has not been perfected for review. See State v. Rayford, 348 So.2d 990 (La.1977) where the court was unable to review the trial court's refusal to give a requested special charge because it was not submitted in writing, nor was its substance or wording contained in colloquy of counsel and the court, nor anywhere else in the record. Such is the case here. However, since defense counsel revealed in his colloquy that he had requested a charge on aggravated assault, the refusal to give such a charge has been perfected and will be addressed.

LSA-C.Cr.P. art. 814 lists the only verdicts responsive to an attempted first degree murder indictment as guilty, guilty of attempted second degree murder, guilty of attempted manslaughter guilty of aggravated battery and not guilty. Instructions on these permissive verdicts are mandatory. State v. Jackson, 450 So.2d 621 (La.1984).

LSA-C.Cr.P. art. 802 obligates the trial judge to charge the jury as to the law applicable to the case. Special requested jury charges are governed by LSA-C.Cr.P. art. 807 which provides 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. Johnson, 438 So.2d 1091 (La.1983). Consequently, the trial court is required to charge the jury, when properly requested, as to the law applicable to any theory of defense which the jurors could reasonably infer from the evidence. State v. Marse, 365 So.2d 1319 (La.1978). However, this charge must be supported by the evidence presented at trial, because the trial court is not required to instruct the jury on abstract principles of law. State v. Telford, 384 So.2d 347 (La.1980).

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Related

State v. Hidalgo
668 So. 2d 1188 (Louisiana Court of Appeal, 1996)
State v. Richardson
648 So. 2d 945 (Louisiana Court of Appeal, 1994)
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641 So. 2d 656 (Louisiana Court of Appeal, 1994)
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629 So. 2d 1267 (Louisiana Court of Appeal, 1993)
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Bluebook (online)
616 So. 2d 225, 1993 WL 88214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-richardson-lactapp-1993.