Opinion
No. 81-KA-0816.
December 4, 1981.
APPEAL FROM CRIMINAL DISTRICT COURT, ORLEANS PARISH, STATE OF LOUISIANA, HONORABLE CHARLES R. WARD, J.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Shelia Myers, J. Kevin McNary, Asst. Dist. Attys., for plaintiff-appellee.
Miriam G. Waltzer and Lawrence M. Lehmann, of Midlow Lehmann, New Orleans, for defendant-appellant.
On November 9, 1978, an Orleans Parish Grand Jury indicated defendant Ervin Dorsey for the crime of first degree murder, a violation of La.R.S. 14:30. On May 27-28, 1980, he was tried before a twelve-person jury and found guilty of second degree murder. La.R.S. 14:30.1. Thereafter, the trial court sentenced defendant to life imprisonment without benefit of probation, parole, or suspension of sentence. On appeal, defendant urges three assignments of error.
Four additional assignments of error were not argued in brief and are therefore considered to have been abandoned. State v. Blanton, 325 So.2d 586 (La. 1976).
We have reviewed defendant's assignments of error and found them to be without merit. Our examination of the pleadings and proceedings in this case, however, indicates a defect in the sentencing below that will require remand of this case to the trial court. La.C.Cr.P. Art. 920(2).
On September 5, 1978, the date of the instant offense, the only sentence that could be imposed under the second degree murder statute was imprisonment at hard labor for life without eligibility "for parole, probation, or suspension of sentence for a period of forty years." [Emphasis supplied]. See, La.R.S. 14:30.1, as amended by Acts 1977, No. 121, § 1. Since the trial court did not allow for the possibility of defendant's release on parole after forty years, the sentence imposed herein is illegal.
Accordingly, defendant's conviction is affirmed, but his sentence is reversed and set aside. The case is remanded for resentencing in accordance with the law.
LEMMON, J., concurs with reasons.
In his appeal from his second degree murder conviction defendant contends that the district attorney deliberately overcharged him with first degree murder in order to try him as an adult in district court and to divest the juvenile court of jurisdiction. The basic contention is that the evidence was insufficient to establish specific intent to kill or cause great bodily harm and that the D.A. should therefore have charged defendant with second degree murder in juvenile court. He contends that the prosecutor submitted a first degree murder indictment to the grand jury in order to be able to try the case in the district court without complying with the requirements of the transfer statute. See R.S. 13:1570, 1571.1 et seq.
The evidence established that five persons were in defendant's car when he parked around the corner from CJ's Bar, where the murder was committed. The three persons remained in the car, while defendant and Earl Jones went to the bar after defendant said he wanted to "pull a hustle" (meaning to commit a robbery). The three all testified for the state, stating that defendant carried a gun with him to the bar; that they heard two shots in rapid order; that defendant and Jones came running back; that defendant had the gun in his hands and blood on his clothes; and that defendant stated he had shot a white man who fell on him, spilling the blood on his clothes. Earl Jones did not testify, and the court refused (probably incorrectly) to admit the excited statements made by Earl Jones to the three witnesses immediately following the aborted robbery.
The jury apparently decided that there was insufficient evidence of specific intent to kill and returned a verdict of second degree (felony) murder. R.S. 14:30.1(2).
Defendant raised his complaint for the first time on appeal. I concur in affirmance of the conviction, without reaching the merits of defendant's contentions, because the issue should have been raised prior to trial by motion to quash. C.Cr.P. Art. 531. At the pretrial hearing on the motion the trial judge could have considered evidence which may be inadmissible at trial(such as evidence of statements made by Earl Jones). Requiring that the matter be raised in a pretrial context also permits the district attorney to file transfer proceedings or seek review of an adverse ruling, if the first degree murder indictment is quashed. Further, the evidence in the record on appeal arguably provides the basis for a reasonable determination by the prosecutor that there is a jury question of whether defendant acted with specific intent. Since there has been no showing (pretrial or otherwise) of a bad-faith prosecutorial effort to deliberately encourage a grand jury to return an indictment, when the charge is not reasonably supported by the evidence, for the purpose of vesting jurisdiction in the district (rather than juvenile) court without complying with the requirements of the transfer statute, I concur in affirming the judgment.