State v. Riche

649 So. 2d 562, 1994 La. App. LEXIS 2997, 1994 WL 597512
CourtLouisiana Court of Appeal
DecidedNovember 2, 1994
DocketNo. CR94-533
StatusPublished
Cited by1 cases

This text of 649 So. 2d 562 (State v. Riche) 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. Riche, 649 So. 2d 562, 1994 La. App. LEXIS 2997, 1994 WL 597512 (La. Ct. App. 1994).

Opinion

hLABORDE, Judge.

The defendant, Allen Riche, II, was charged by bill of indictment with two counts of contributing to the delinquency of juveniles, which were cited as violations of La. R.S. 14:92A(3). After the state rested its case in the first trial, the judge ruled sua sponte that a mistrial had occurred due to a substantial error in the indictment. Subsequently, the state filed a bill of information again charging the defendant under the same statute number, but changing the name of the victim. Upon the defendant’s oral motion for a bill of particulars, the state indicated for the first time that it was actually pursuing the defendant under La.R.S. 14:92 A(9) and 14:91.2. The defendant moved to quash the original bill of information on the ground of double jeopardy and the oral charges on the ground of prescription, for the state’s failure to timely institute prosecution. The motion to quash was granted on the ground of double jeopardy. The state appeals the granting of defendant’s motion to quash. We reverse, finding that double jeopardy does not apply and remand the case for further preceedings.

FACTS

On the evening of Monday, September 30, 1991, Deputy Peltier of the Vermilion Parish Sheriffs Office was dispatched to the Bo-urque home located in a rural area of the parish. He arrived to find ten (10) year old Blake Bourque ill in the family bathroom, and the prevalent |2smell of alcohol. The young child was drunk to the point of being semi-conscious. The mother was told to take him to the hospital.

The investigation prompted by this incident revealed that Bourque had been with other neighborhood children drinking brandy from a one-gallon jug. The others with Bo-urque were David Brannon, Richard Bau-doin, Raymond Guidry, and Nelson Lacoste, who were sixteen, fourteen, fourteen and an unknown age respectively. One of the boys retrieved the gallon bottle of brandy and turned it over to the deputy. By this time the bottle was less than half full. The boys indicated to the deputy that the defendant had supplied them with the liquor. Attempts to speak with the defendant that evening were unsuccessful.

At the grand jury Baudoin testified that the defendant had twice given him and his friends gallon jugs of liquor. Baudoin indicated the dates of the incidents as September 27, 1991, and September 30, 1991. The grand jury indicted the defendant, charging him as follows:

Count #1 September 27, 1991
did intentionally and unlawfully entice, aid and permit Richard Baudoin, a child under the age of seventeen (17) years, to consume alcoholic beverages; in violation of LSA-R.S. 14:92(3)
Count #2 September 30, 1992
did intentionally and unlawfully entice, aid and permit Richard Baudoin, a child under the age of seventeen (17) years, to consume alcoholic beverages; in violation of LSA-R.S. 14:92(3)

At trial on December 11, 1992, Baudoin testified that he did not personally receive alcohol from the defendant, nor was he present when the defendant gave the liquor to Guidry on September 27, or Brannon on September 30. When confronted with his Grand Jury testimony, Baudoin stated that it was wrong and his present testimony was the correct version of what happened on the two occasions. After the state rested the defense counsel moved for a directed verdict in favor of the defendant arguing that the state had failed to prove that the defendant “intentionally enticed, aided, or permitted Richard Baudoin to visit any place where beverages of either high or low alcoholic content were the principal commodity sold or given away. There is no evidence that has been presented that he ever enticed them to go into any kind of establishment such as this.” This conduct is prohibited pursuant to La.R.S. 14:92 A(3).

The state disagreed with the defense counsel as to what the indictment charged, and stated that “[t]he indictment charges the defendant with contributing to the delinquency of a juvenile by specifically unlawfully enticing, aiding, and permitting Richard Baudoin, a child launder the age of seventeen, to con[564]*564sume alcoholic beverages.” The state argued that the admission of the evidence that the defendant gave the liquor to Guidry and Brannon “expanded” the pleadings and amended the indictment by the admission of evidence that the defendant contributed to the delinquency of the two other juveniles. The trial court did not allow the state to amend the indictment against defendant, but instead granted a mistrial sua sponte. In his written reasons for judgment the trial court noted that the state had failed to prove its case in establishing that two counts of contributing to the delinquency of a juvenile had been committed against Baudoin. The court found the indictment against the defendant fatally defective and unable to be amended so as to render it valid. The court found that changing the name of the victim stated in the indictment at this point in the proceedings mandated a mistrial pursuant to La.Code Crim.P. art. 487.

The defendant did not seek a writ of review of the granting of the mistrial, nor for the denial of his motion for acquittal. The state did not seek review of the denial of its request to amend the indictment. Instead, the defendant was recharged by bill of information on January 25, 1993, as follows:

Count # 1 September 27, 1991
did intentionally and unlawfully entice, aid and permit David Brannon, a child under the age of seventeen (17) years, to consume alcoholic beverages; in violation of LSA-R.S. 14:92(3)
Count # 2 September 30, 1991
did intentionally and unlawfully entice, aid and permit Raymond Lee Guidry, a child under the age of seventeen (17) years, to consume alcoholic beverages; in violation of LSA-R.S. 14:92(3)

The defendant retained new counsel, Mr. Douglas Saloom, who filed no pretrial motions on behalf of the defendant except motions for continuance of several trial dates. One of these motions for continuance was granted by the trial judge only after counsel for the defendant agreed to waive the claim of prescription, or expiration of the time limits to commence trial. On February 11, 1994, the day of defendant’s second trial, Mr. Saloom requested of the state “designation with precision the statute in which it is proceeding.” The state acknowledged that no statute designated La.R.S. 14:92(3) existed and explained it must have been a typographical error and that the statute in question actually should be 14:92 A(9). This statute makes it unlawful to intentionally entice, aid or permit a juvenile under the age of seventeen to “violate any law of the state or ordinance of any parish or village, or town or city of the state;” The Ldefendant then requested that the state advise him of which law or ordinance it was referring. The state questioned the appropriateness of the defendant’s request, objecting to the fact that counsel for the defendant had not filed a motion for bill of particulars within the time limits set forth by La.Code Crim.P. art. 521. The trial court overruled the state’s objection and required it to inform the defendant of the statute or ordinance the defendant was alleged to have caused the juveniles to violate. The state informed the defendant he was charged with contributing to the delinquency of a juvenile pursuant to La.R.S. 14:92 A(9) and 14:91.2.

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State v. Stein
745 So. 2d 698 (Louisiana Court of Appeal, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
649 So. 2d 562, 1994 La. App. LEXIS 2997, 1994 WL 597512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-riche-lactapp-1994.