COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
APPELLATE PANEL: PRO TEMPORE*
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE TEEKELL
The defendant, James H. Byrd, was indicted by a St. Martin Parish Grand Jury on May 4, 1984, and charged with aggravated kidnapping, a violation of La. R.S. 14:44; attempted first degree murder, a violation of La. R.S. 14:30 and 14:27; armed robbery, a violation of La. R.S. 14:64, and aggravated escape, in violation of La. R.S. 14:110-B.
On October 26, 1984, following a trial by a twelve (12) person jury, defendant was found guilty as charged. Defendant filed a motion for post verdict judgment of acquittal on the matter of the aggravated kidnapping. Following a hearing on that motion, the trial court held that the evidence for aggravated kidnapping was insufficient, but that the evidence supported a conviction for simply kidnapping. Defendant waived all delays for sentencing and was sentenced as follows: For the armed robbery, the defendant was sentenced to serve seventy (70) years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; attempted first degree murder, to serve thirty (30 years at hard labor to run consecutively with the sentence for armed robbery; simply kidnapping, to serve five (5) years imprisonment with the Department of Corrections, to run concurrent with the other sentences; and for the charge of aggravated escape, defendant was sentenced to serve ten (10) years at hard labor to run consecutive with the other sentences.
Defendant appeals his convictions and sentences alleging sixteen (16) assignments of error. *fn1 However, as defendant briefed only four (4) assignments of error, the other twelve (12) are considered abandoned and will not be addressed. *fn2
On December 9, 1983, the defendant, James H. Byrd, escaped from the St. Martin Parish jail. The defendant was transported from the jail to a doctor's office in Lafayette, Louisiana. As no regular patrol car was available, the prisoner was taken to Lafayette in a regular automobile owned by Warden Charles Doucet. Deputy Russell Calais was assigned to transport the prisoner to Lafayette.
Upon reaching Pride Plaza in Lafayette, the location of defendant's doctor's office, the defendant wrestled Deputy Calais' gun away from him. Defendant Byrd told the deputy he had his finger on the trigger, and would fire the gun if necessary to get it from the deputy. Fearing for his safety, and unable to alert anyone outside his vehicle, the deputy relinquished his weapon.
Defendant Byrd informed the deputy that the appointment with the doctor had only been a means to set up his escape. He made it very clear to Deputy Calais that unless he followed defendant Byrd's orders, he would be shot.
The defendant then instructed the deputy to drive him to a certain location. He held the gun pointed at the deputy, with the hammer cocked, and informed the deputy that he would shoot him if he did not do as instructed. Byrd also informed the deputy that he had hired accomplices who were going to kill Deputy Calais. During the journey, the defendant remained armed with the .38 calibre pistol taken from Deputy Calais. The defendant took the deputy's belt clips and a bit of change from the deputy.
As the deputy drove toward the defendant's destination, Byrd informed him that he had to get rid of the deputy, but, in a few days, he'd phone the Deputy's widow and tell her where to find his body. At one pint, the defendant pointed the gun at Deputy Calais' head, pulled back the hammer, and was stopped from shooting the deputy when he convinced Byrd that shooting him in this location would attract too much attention. Realizing he had no choice but to flee for his life, the deputy suddenly stopped the vehicle, jumped out, and ran toward a wooded area for safety. As he ran from the car, he heard a single shot fired. The defendant then drove away.
The defendant apparently drove through Mississippi and into Georgia where he stole an automobile from a dealership., He then drove to Hollywood, Florida, where, following a series of fortuitous events, he was apprehended by local police. A routine check determined that the Porsche he was driving was stolen as was the gun he had tried to pawn.
Following his arrest, and prior to any interrogation, the defendant spontaneously revealed to the arresting officer his true identity and the fact that he was an escaped prisoner from Louisiana. Defendant was then taken to police headquarters, where, following the signing of a Waiver of Rights form advising him of his rights, he was questioned by three (3) detectives of the Hollywood Police Department. The defendant then gave a tape recorded statement which was alter transcribed into a 44-page document presented at trial.
The defendant was returned to St. Martin Parish where he was alter tried on the charges heretofore setforth.
ASSIGNMENT OF ERROR NO. 1
The defendant argues through this assignment that the trial court erred in denying defendant's motion to recuse the district attorney from the prosecution of this case. Defendant's argument centers around the fact that Mr. Kidd, an assistant district attorney for St. Martin Parish, had served as defendant's appointed counsel on this case while still associated with the indigent defender board. Thus, defendant asserts, that allowing the St. Martin Parish district ...