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State v. Gardner4/30/2003
PUBLISHED
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
Defendant, Thomas L. Gardner, is charged with first degree murder, a violation of La.R.S. 14:30. On August 5, 2002, Defendant filed a motion for an adequate bill of particulars or to quash the indictment. Defendant also filed a separate demand for "Bernard notice," seeking information regarding victim impact evidence the State might use.
According to the Defendant, the court conducted a hearing on September 6, 2002, at which the State agreed to respond to both motions. On October 18, the State filed its responses. Then, on November 7, Defendant requested that the State respond in greater detail. At a hearing held on November 14, the trial court ruled the State's responses were adequate.
Defendant filed a writ with this court, seeking relief from the lower court's ruling. This court granted a stay on January 17, 2003, and called the case to the docket.
ASSIGNMENT OF ERROR NO. 1
In his first assignment, Defendant argues the trial court erred by refusing to order the State to clarify its bill of particulars. Specifically, Defendant alleges the predicate offenses listed in the bill of particulars are factually inconsistent and are listed disjunctively.
The indictment against Defendant reads as follows:
In the Twenty-Eighth Judicial District Court on the 12th day of December, 2001, the Grand Jury for the Parish of LaSalle, charges that Thomas L. Gardner has committed the offense of FIRST DEGREE MURDER in that between the dates of October 11 and October 13, 2001, while in LaSalle Parish, Louisiana, Thomas L. Gardner committed first degree murder of Karen Sue Roller, thereby violating LRS 14:30A(1);
At issue is the State's "Answer to Motion for More Specific Bill of Particulars" that stated, in pertinent part:
NOW INTO COURT, through the undersigned District Attorney, comes the State of Louisiana, who does answer the request of the defendant for a more specific Bill of Particulars in the following manner, to-wit:
a. The acts enumerated in La.R.S. 14:30 A(1) consist of armed robbery and/or simple robbery.
More specifically, the State shows that the defendant is alleged to have, by the use of force or while armed with a dangerous weapon, to-wit: a knife, took several firearms belonging to the victim, Karen Sue Roller by the use of force while armed with a dangerous weapon.
Also the State will show that the defendant is alleged to have taken the weapons from the victim Karen Sue Roller by the use of force without being armed with a dangerous weapon thereby committing the offense of simple robbery.
b. The defendant is not alleged to have violated any of the provisions of La.R.S. 14:42.
c. The defendant is not alleged to have violated any of the provisions of La.R.S. 14:42.1.
d. As of this time, the State alleges that the defendant has violated Title 14 Section 60 and that after entering the residence of Karen Sue Roller, he armed himself with a dangerous weapon and committed a battery upon the person of Karen Sue Roller while he was in her residence.
e. See the answer to Paragraph a hereinabove.
a. More specifically, the defendant is accused of taking firearms.
b. From Karen Sue Roller.
c. Yes, the defendant is accused of using force and intimidation.
d. Yes.
The particulars just listed were provided in response to the following questions in Defendant's motion:
A. Which of the acts enumerated in La.R.S. 14:30 A(1) is the
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