State v. Selvage

644 So. 2d 745, 1994 WL 545489
CourtLouisiana Court of Appeal
DecidedOctober 7, 1994
Docket93 KA 1435
StatusPublished
Cited by15 cases

This text of 644 So. 2d 745 (State v. Selvage) 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. Selvage, 644 So. 2d 745, 1994 WL 545489 (La. Ct. App. 1994).

Opinion

644 So.2d 745 (1994)

STATE of Louisiana
v.
Jerry SELVAGE.

No. 93 KA 1435.

Court of Appeal of Louisiana, First Circuit.

October 7, 1994.

*747 Doug Moreau, Dist. Atty., Baton Rouge, for plaintiff-appellee State.

David Price, Office of Public Defender, Baton Rouge, for defendant-appellant Jerry Selvage.

Before GONZALES, FOGG and PARRO, JJ.

PARRO, Judge.

Jerry Selvage was charged by bill of information with aggravated burglary, a violation of LSA-R.S. 14:60. He pled not guilty and, after trial by jury, was convicted as charged. Subsequently, the state charged defendant as a third felony habitual offender; and defendant stipulated to the charge. The court sentenced him to serve a term of twenty years imprisonment at hard labor. Defendant has appealed, urging seven assignments of error. Assignments of error numbers 1, 6, and 7 were not briefed on appeal and, therefore, are considered abandoned. See Uniform Rules—Courts of Appeal, Rule 2-12.4.

*748 PATENT ERROR

In reviewing the record for patent error, we have discovered the assistant district attorney did not sign the bill of information. Article 384 of the Louisiana Code of Criminal Procedure requires the district attorney (or the designated assistant) to sign the formal charging instrument. See State v. White, 404 So.2d 1202, 1204-05 (La.1981); See generally LSA-C.C.P. art. 863. In the instant case, Assistant District Attorney Beau Brock merely placed his initials on the signature line. Such does not comply with the statute's requirement that the document be "signed." However, by responding to defendant's discovery motions and by presenting the case at trial, the prosecution fully ratified the filing of formal charges; therefore, any protection that is afforded to the accused and to society by the requirement that the district attorney's signature appear on the bill of information was fully accorded in this case. If there were any doubts concerning the authenticity of the prosecutorial instrument, those were undoubtedly dispelled by the assistant district attorney's active prosecution of this case. White, 404 So.2d at 1205; State v. Thompson, 543 So.2d 1132, 1135 (La.App. 1st Cir.1989). Further, although the failure of the assistant district attorney to sign the bill of information was a ground for quashing the information, defendant did not file a motion to quash and, thus, waived the right to complain of the failure of the prosecutor to sign the bill of information. See Thompson, 543 So.2d at 1135. See LSA-C.Cr.P. arts. 384, 534(1) and 535.

FACTS

At about 11:30 p.m. on September 15, 1992, Yvonne Haynes, a landscape architecture student at Louisiana State University, was driving home after doing school work in the design studios on the LSU campus. As she was driving close to her house, she noticed a man walking down the street. She stopped her car at her house and decided to wait until the man had passed before getting out of her car. As she rolled up her window, the man suddenly appeared at her car and asked for directions to a nearby street. When Haynes turned her head to indicate the direction, the man stuck his hand behind her head, warned her he had a .25 automatic weapon, and threatened to shoot her. He then asked for her book bag, which Haynes also used as her purse. Haynes was terrified and tried to stall the man to determine if he really had a gun. She turned her head and saw that he did not have a gun in his hand.

The man reached in through the partially open car window and unlocked the door. Haynes tried to get out of her car, but the man pushed her back. He demanded her keys and started pushing her across the seat and hitting her. Haynes testified that the man hit her about ten or fifteen times on the left side of her body. While the man continued to hit her, Haynes threw her keys onto the floorboard and used her arm to defend herself. During the struggle, she managed to honk the horn several times while she screamed for help. Shortly, several neighbors came outside and started yelling at the man. The man grabbed Haynes' bag, got out of the car, and started running.

Three men who had come outside in response to Haynes' pleas started chasing the man in an effort to recover the book bag. The three men followed the perpetrator until after he jumped into a muddy canal and threatened to shoot them with a gun. Concerned that the perpetrator might have a gun, the three neighbors did not go into the canal. However, they persisted in asking the man to drop the bag. By this time, several police units arrived at the scene. Two of the officers climbed over the fence, handcuffed the man, and pulled him out of the canal and over the fence. Another officer went into the canal and recovered the victim's bag.

The victim was taken to the scene of the arrest where she identified the suspect. At the trial, the victim and other witnesses identified defendant as being the man who had taken the victim's book bag. Defendant testified in his own defense at the trial. He admitted taking the victim's bag, but he claimed there was no struggle when he reached into the car and picked up the bag.

DENIAL OF MOTION FOR MISTRIAL

In the second assignment of error, defendant asserts the court erred when it *749 denied his motion for mistrial which was filed on the ground the state failed to comply with its continuing duty to provide discovery. Defendant specifically argues that, by failing to give him additional information it had concerning his criminal record, the state lulled defendant into a misapprehension of the strength of the state's case and caused defense counsel to improperly advise him to testify.

Prior to trial, defendant filed a routine discovery motion in which he asked for a copy of his "criminal arrest and conviction record." In the state's answer to the motion for discovery, the state responded that a copy was attached. We have found a copy of defendant's rap sheet in the record. The rap sheet shows a conviction for simple criminal damage to property; and there also is an entry for a sentence which apparently was imposed as the result of convictions for attempted first degree robbery, simple burglary, and aggravated battery. The rap sheet also discloses some arrests which were not prosecuted, as well as several arrests for which there is no disposition (possession of a stolen vehicle, failure to leave the premises, family court bench warrant, simple battery on a police officer, resisting an officer, aggravated burglary, simple burglary, theft of an automobile, attempted first degree robbery, simple battery, and resisting an officer). When defendant testified at the trial, on direct examination he admitted having previously been convicted of attempted first degree robbery, aggravated battery, and simple criminal damage to property (misdemeanor). On cross-examination, when the state indicated its intent to question defendant about his prior convictions, defense counsel objected and explained that she anticipated the state was going to try to question defendant about convictions which were not reflected in the state's answer to defendant's discovery motion. Responding, the prosecutor revealed that pursuant to discovery he had given defendant a copy of the most recent rap sheet. During the trial when he discovered that defendant was going to testify, he had his investigator check records in the district attorney's office to find the disposition of the arrests which appear on defendant's rap sheet.

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Cite This Page — Counsel Stack

Bluebook (online)
644 So. 2d 745, 1994 WL 545489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-selvage-lactapp-1994.