Appellant Milton Rutledge, while serving a sentence in the State Penitentiary, having been convicted of a felony, applied to the court of his conviction in St. Landry Parish for habeas corpus. The writ was granted and Rutledge was transported to Opelousas for the hearing.
After the hearing, when he was being returned to the penitentiary in the custody of Officer James T. Herron on April 21, 1969, Rutledge attempted to escape by bolting from the automobile in which he was riding and then fleeing on foot. He was apprehended shortly thereafter, and the return trip to the penitentiary was resumed. The attempt to escape occurred in St. Landry Parish.
Based upon these facts, a bill of information charging simple escape was filed against Rutledge by the District Attorney of St. Landry Parish on October 23, 1969. Rutledge was then returned to St. Landry Parish to face trial on this charge. With the assistance of court-appointed counsel, he entered a plea of not guilty to the charge of simple escape. On November 14, 1969 Rutledge withdrew his not guilty plea and entered a plea of guilty to attempted simple escape. The judge then imposed a sentence of imprisonment for one year at hard labor in the State Penitentiary, to run consecutively with the sentence he was then serving as required by Article 110 of the Criminal Code.
Within the time allowed, the District Attorney of St. Landry Parish initiated new proceedings against Rutledge, and the court fixed April 6, 1970 as the date for the trial on a charge of attempted simple escape based upon the facts of the April 21, 1969 incident.
Rutledge was tried before a jury on April 6, 1970 and found guilty. A sentence of two and one-half years' imprisonment was imposed by the trial judge.
From the conviction and sentence Rutledge has appealed. Four errors at the trial are assigned, upon which he relies for reversal of his conviction and sentence.
In preparation for trial, defense counsel applied for and was granted a subpoena duces tecum,
On the day of the trial, Rutledge's medical records had been delivered to the Clerk of Court by penitentiary officials and were available to the defense. Defense counsel contended, however, that the subpoena contemplated not only delivery of the records, but that the custodian of those records would also be present to explain and interpret them. He argues that the custodian's testimony was required to interpret the medical records and support his theory that Rutledge was physically incapable of running away as the State contends. The trial judge held that since the records had been produced in court the subpoena had been complied with. The jude observed in his per curiam that a subpoena ad testificandum would have been the proper order to compel the attendance of the custodian as a witness. And since defense counsel did not apply for the subpoena ad testificandum he could not complain. Defense counsel's error, if it was such, cannot be imputed to the State.
We agree with this ruling.
During the trial the State called Officer James T. Herron, the prison custodian who was transporting Rutledge to the State Penitentiary after the first hearing in Opelousas.
Referring to Rutledge, the District Attorney asked Herron, "In what manner did he leave the car when he got out?", to
Previously Herron had testified to these same remarks, and defense counsel had objected that he had not been advised in writing prior to the State's opening statement that the remarks, which he considered inculpatory, would be used in evidence as required by Article 768 of the Code of Criminal Procedure.
The inculpatory statement contemplated by Article 768 "refers to the out-of-court admission of incriminating facts made by a defendant after the crime has been committed. It relates to past events." State v. Fink, 255 La. 385, 231 So.2d 360 (1970).
These out-of-court utterances of Rutledge were incidents of the criminal act and therefore formed part of the res gestae admissible in evidence under the explicit provisions of Section 448 of Title 15 of the Revised Statutes. See also State v. Fink, supra.
While the Assistant District Attorney was making his closing argument to the jury he said, "Mr. Herron trusted Milton Rutledge, he didn't even handcuff him, he brought him here." At this point in the argument, Allen Dohman, one of the jurors, stood up and shouted, "he should have!" Counsel for the defendant at this juncture moved for a mistrial because he asserted the juror's exclamation was highly prejudicial to the defense and constituted a violation of the juror's oath. The motion was denied, and a bill reserved and perfected.
Although we must point out that the juror's conduct was improper, we cannot say that the outburst involved a violation of his oath as a juror. And we agree with the trial judge that the conduct furnishes no basis for a mistrial. As the record reveals, when the jury was polled at the request of counsel after verdict, Dohman, the offending juror, disclosed that he voted for acquittal. This convinces us that no prejudice resulted to the defense.
After verdict and sentence, defense counsel objected to the imposition of two and one-half years' imprisonment contending that the court could not constitutionally impose a greater sentence after reconviction than the one-year sentence originally imposed and set aside at the defendant's urging.
The basis for this contention is the decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), wherein the United States Supreme Court held:
Because the reasons for the disparity between the one year and two-and-one-half year sentences do not appear in the record,
The conviction is affirmed. The case is remanded to correct the illegal sentence.
DIXON, Justice (concurring).
With respect to Bill of Exceptions No. 1, it should be noted that subpoenas are treated in the Code of Criminal Procedure in articles 731 and 732. Article 732 is as follows:
The actual subpoena does not appear to be in the record. Defendant's application for what he calls a "writ" of subpoena duces tecum is in the record; it does not name any person. It simply requests that the subpoena issue "commanding the custodian of the medical records of Milton Rutledge at the Louisiana State Penitentiary * * *" to produce the medical records. The defense complains that the unnamed custodian was not present in court, depriving him of a witness to interpret the medical records.
Normally custodians of medical records are not persons able to interpret them. At any rate, a party who requires the presence of a witness must name the witness. Since no witness was subpoenaed, defendant cannot complain.
Simple escape is
If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state's opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.