Opinion
Nos. 2015–KA–0364 2015–K–0082.
07-06-2016
STATE of Louisiana v. Jubbard PRICE. State of Louisiana v. Jubbard Price.
Leon A. Cannizzaro, Jr., District Attorney, New Orleans, LA, for Appellee/State of Louisiana. Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
Leon A. Cannizzaro, Jr., District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS ).
SANDRA CABRINA JENKINS, Judge.
Defendant Jubbard Price appeals his convictions and sentences for five counts of simple kidnapping and two counts of negligent homicide. In a consolidated writ application, the State seeks review of the trial court's finding that Defendant was not a second-felony habitual offender.
For the reasons that follow, we reverse Defendant's convictions and vacate his sentences on the simple kidnapping counts, counts 1 through 5, and remand for a new trial on those five counts. We affirm Defendant's convictions and sentences for negligent homicide, counts 7 and 8. Finally, in light of our reversal of counts 1 through 5, we grant the State's writ application. The judgment of January 9, 2015, finding that the State failed to prove the identity of the defendant in the predicate offense is vacated. This matter is remanded to the trial court for further proceedings consistent with this opinion.
STATEMENT OF THE CASE
On May 3, 2013, Defendant was charged by grand jury indictment, in Counts 1 through 5, with second degree kidnapping in violation of La. R.S. 14:44.1 ; and in Counts 6 through 8, with second degree murder in violation of La. R.S. 14:30.1. Defendant was tried by a twelve-person jury on June 9 through 13, 2014, and found guilty of five counts of simple kidnapping; not guilty of negligent homicide, as to Count 6; and guilty of negligent homicide, as to Counts 7 and 8. Defendant waived sentencing delays and was sentenced on October 17, 2014 to five years imprisonment at hard labor on each of Counts 1 through 5, 7, and 8, with all sentences to run consecutively. The trial court also fined Defendant $5,000 on each of the seven counts. The trial court granted Defendant's motion for appeal. The State filed a multiple bill of information alleging that Defendant was a second-felony habitual offender; at a January 9, 2015 hearing, the trial court found Defendant was not a habitual offender.The State timely noticed and filed an application for supervisory review of the trial court's habitual offender judgment. That writ was consolidated with Defendant's appeal in the present case.
FACTS
Defendant was convicted of the January 12, 2012 simple kidnapping of Keishauna Keppard, Alisia White, Reyland Berry, Keris Lackings, and Lavonda Hayes; and negligent homicide in the killings of Keishauna Keppard and Reyland Berry on that same date.
On the morning of January 12, 2012, the police received a 911 call concerning a shooting at a residence on Devine Street in New Orleans East. The residence was owned by Troy Leslie who lived there with his family and numerous houseguests. Mr. Leslie was shot to death that day, along with his 20–year–old daughter, Keishauna Keppard, and one of his houseguests, Reyland Berry. Two other persons at the residence, Katrina Davis and Lavonda Hayes, were shot but survived. Victims Alisia White and Keris Lackings were not injured.
Evidence at trial revealed that Donald Johnson, Andrea Price, and Jubbard Price entered Mr. Leslie's residence and began corralling everyone into the garage by giving them the false impression that they were all going to smoke marijuana. The Defendant stayed in the garage and held everyone at gunpoint while Andrea Price and Donald Johnson roamed around the residence, presumably looking for a safe. Donald Johnson went into the master bedroom and shot Mr. Leslie and Ms. Davis in their bed, killing Mr. Leslie and injuring Ms. Davis.
Andrea Price testified that Defendant pointed a gun at the five people in the garage, Keishauna Keppard, Lavonda Hayes, Reyland Berry, Alisia White, and Keris Lackings, and told them to get on the ground. Ms. Price testified that when Reyland Berry emerged from the garage and tried to shoot her, Donald Johnson shot and killed Mr. Berry. Ms. Price also testified that she saw Donald Johnson and Defendant taking a large safe out of the house and loading it into Mr. Leslie's car. She stated that she flagged the car down, and got in. She said that when the defendants stopped at a red light, the police pulled up behind them and ordered them out of the car. She testified that Donald Johnson kept driving and crashed the car into a pole. Andrea Price stated that after the crash, she and Defendant got out of the car. Donald Johnson started shooting at the police, who returned fire, shooting and killing Johnson. Andrea Price and Defendant were also shot during the exchange. A safe was found in the vehicle in which Donald Johnson, Andrea Price, and Defendant had been driving.
Several other witnesses testified and evidence was introduced during trial to corroborate the testimony of Ms. Price.
Pro Se Assignment of Error No. 1
Defendant argues that the verdicts of guilty of simple kidnapping returned by the jury in Counts 1 through 5 of the indictment were not responsive to the indictments, all five of which charged Defendant with second degree kidnapping, and that he is entitled to have his convictions reversed as to Counts 1 through 5. We find merit to this argument, and reverse Defendant's convictions and sentences in Counts 1 through 5, and remand the case for a new trial on those counts.
A non-responsive verdict is a patent error which does not require a contemporaneous objection. State v. Jones, 13–1118, p. 6 (La.App. 4 Cir. 1/30/14), 156 So.3d 126, 129. La. C.Cr.P. art. 814(A) lists a number of offenses and responsive verdicts for those offenses. La. C.Cr.P. art. 814(A), however, does not list the offense of second degree kidnapping nor does it provide any responsive verdicts to that offense. La. C.Cr.P. art. 815 states that the responsive verdicts in all cases not provided for in La. C.Cr.P. art. 814 are guilty; guilty of a lesser and included grade of the offense charged; and not guilty. The Louisiana Supreme Court defines lesser and included offenses as "those in which all of the essential elements of the lesser offense are also elements of the greater offense charged." State v. Graham, 14–1801, p. 5 (La.10/14/15), 180 So.3d 271, 275. If any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive. Id.
Defendant was charged with second degree kidnapping, which is defined in La. R.S. 14:44.1 as the doing of any of the acts listed in Subsection B wherein the victim is: (1) used as a shield or hostage; (2) used to commit or flee from a felony; (3) physically injured or sexually abused; (4) imprisoned or kidnapped for 72 or more hours; or (5) imprisoned or kidnapped when the offender is armed, or reasonably believed to be armed, with a dangerous weapon. La. R.S. 14:44.1(A). Under subsection B, kidnapping is the: (1) forcible seizing or carrying of any person from one place to another; or (2) the enticing or persuading of any person to go from one place to another; or (3) the imprisoning or forcible secreting of any person. La. R.S. 14:44.1(B).
Thus, under La. R.S. 14:44.1, the crime of second degree kidnapping is completed by doing any one of the three acts listed in Subsection B, wherein the perpetrator also does any one of the five acts listed in Subsection A to the victim—one act from "column" B plus one act from "column" A equals second degree kidnapping. Thus, assuming an offender commits just one act listed in Subsection B and does just one thing with the victim listed in Subsection A, there are fifteen possible ways in which an offender can commit the offense of second degree kidnapping.
The jury convicted Defendant of simple kidnapping, which is defined by La. R.S. 14:45 as the intentional and forcible seizing and carrying of any person from place to place without his consent, and the intentional taking, enticing or decoying away of certain persons without consent.
There are five possible scenarios in which the evidence sufficient to support a conviction for second degree kidnapping would necessarily support a conviction for simple kidnapping—all involving the offender forcibly seizing and carrying the victim from one place to another. See La. R.S. 14:44.1(B)(1) and (A)(1)-(5), and La. R.S. 14:45(A)(1). However, there are ten other scenarios in which the evidence sufficient to support a conviction for second degree kidnapping would definitely not support a conviction for simple kidnapping. See La. R.S. 14:44.1(B)(2) & (3) and (A)(1)-(5). Put another way, it is clear that a reasonable state of facts can be imagined where the greater offense of second degree kidnapping is committed without perpetration of the lesser offense of simple kidnapping.
We find that simple kidnapping was not a responsive verdict to the charged offense of second degree kidnapping in Counts 1 through 5 of the indictment. Accordingly, we reverse Defendant's convictions for simple kidnapping in Counts 1 through 5, and remand the case for a new trial on those five counts.
Pro Se Assignment of Error No. 2.
Defendant argues that the evidence was insufficient to support his convictions as to all seven counts. Because we reverse Defendant's convictions on the five counts of simple kidnapping, we address only Defendant's convictions for negligent homicide.
Defendant was convicted in Counts 7 and 8 of negligent homicide in the deaths of Keishauna Keppard and Reyland Berry. Negligent homicide is defined as the "killing of a human being by criminal negligence." La. R.S. 14:32(A). "Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances." La. R.S. 14:12.
The evidence presented at trial shows that Defendant held five people at gun-point while his accomplice murdered three people, and injured two others. After the kidnappings and murders, Defendant took a safe from the residence of one of the murder victims, and fled in a car stolen from the decedent.
We find that the evidence is far more than sufficient to support Defendant's convictions for two counts of negligent homicide.
Pro Se Assignments of Error No. 3 and 4.
Defendant argues that trial counsel rendered ineffective assistance in: (1) failing to instruct the jury as to the effect of impeachment testimony; (2) failing to object once the State was allowed to improperly impeach their witnesses; (3) failing to move for a mistrial on the ground that the trial court failed to caution the jury as to the effect of impeachment testimony; and (4) failing to move for a mistrial once the State was allowed to improperly impeach those witnesses.
Defendant also argues that the trial court erred in failing to instruct the jury as to "the effect to be given impeachment testimony"; in allowing the State to impeach its witnesses by playing their prior statements made to investigating officers; in overruling defense counsel's objection to the State using witnesses' recorded statements to bolster their testimony; and in overruling defense counsel's objection to the State using a witness's recorded statement to lead her.
All the claims in both of these pro se assignments of error relate to the State's playing, during the testimony of several witnesses, their respective recorded statements made to investigating police officers.
In order to prevail on a claim of ineffective assistance of counsel, Defendant must show that: (1) counsel's performance was deficient; and (2) he was prejudiced by the deficiency. State v. Barbain, 15–0404, p. 26 (La.App. 4 Cir. 11/4/15), 179 So.3d 770, 786. To carry his burden, Defendant must show that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Id.
Defendant fails to specify or remotely suggest how the playing of these recorded statements operated to impeach the testimony of any of the witnesses, to bolster the testimony of the witness, or to lead the witness. For the same reason, Defendant has failed to establish that the trial court "committed reversible error" in failing to caution the jury as to effect to be given impeachment testimony; in allowing the State to impeach its witnesses; in overruling his trial counsel's objection to the State using a witness's recorded statement to bolster her testimony or lead her.
Defendant cannot show that, but for counsel's deficient performance, the jury's verdict would have been different. We find no merit to this assignment of error. Pro Se Assignment of Errors No. 5 and 6.
Defendant argues that his counsel was ineffective in failing to object when the State committed prosecutorial misconduct by knowingly using false and perjured testimony of defendant Andrea Price during trial.
Where a prosecutor allows a State witness to give false testimony without correction, a reviewing court must reverse the conviction if the witness's testimony reasonably could have affected the jury's verdict, even if the testimony goes only to the credibility of the witness. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959) ; State v. Broadway, 96–2659, p. 17 (La.10/19/99), 753 So.2d 801, 814. To prove a Napue claim, the defendant must show that the prosecutor acted in collusion with the witness to facilitate false testimony. Broadway, 96–2659 at p. 17, 753 So.2d at 814. Furthermore, fundamental fairness, i.e., due process, is offended "when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Napue, 360 U.S. at 269, 79 S.Ct. at 1177. When false testimony has been given under such circumstances, the defendant is entitled to a new trial unless there is no reasonable likelihood that the alleged false testimony could have affected the outcome of the trial. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). However, the grant of a new trial based upon a Napue violation is proper only if: (1) the statements at issue are shown to be actually false; (2) the prosecution knew they were false; and (3) the statements were material. United States v. O'Keefe, 128 F.3d 885, 893 (5th Cir.1997).
Defendant refers to alleged testimony by Andrea Price that Defendant and Donald Johnson dragged Troy Leslie's safe from the residence, put it in Mr. Leslie's car, drove off, and picked her up. Defendant argues that Ms. White contradicted Andrea Price's testimony when Ms. White stated that Defendant did not drag a safe out of the residence or get into a car.
Defendant fails to show that Ms. Price's statements were false and/or that the prosecution knew they were false. First, the fact that Ms. Price's recollection of occurrences was different than those of Ms. White does not establish that Ms. Price's statements were false. Further, even assuming that there were false statements, Defendant has failed to show that it was Ms. Price's statements that were false, rather than those of Ms. White.
Accordingly, Defendant has failed to show that Ms. Price's statements were false and that the prosecution knew they were false. He has therefore failed to establish any deficient representation by his defense counsel in failing to object to this testimony by Ms. Price.
We find no merit to these assignments of error.
Pro Se Assignment of Error No. 7.
Defendant argues that the trial court erred in permitting Andrea Price to talk with her attorney in the middle of cross examination by defense counsel.
During defense counsel's cross examination of Ms. Price, counsel asked to approach the bench, whereupon a bench conference was held. The trial court removed the jury from the courtroom before discussing the matter. The record reflects that Ms. Price asked the court if she could speak to her attorney. The trial judge conferred with Ms. Price off the record, then ruled that she could consult with her attorney.
The record shows that Ms. Price did not interrupt defense counsel's cross examination of her to ask to speak to her counsel. Instead, Ms. Price made use of defense counsel's interruption of counsel's cross examination of her to make the request.
Defendant cites no authority for the argument that the trial court erred in permitting the consultation. Defendant also fails to suggest any possible prejudice to him resulting from Ms. Price's consultation with her counsel. "A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused." La. C.Cr.P. art. 921.
Defendant has failed to show any error in the ruling of the trial court or prejudice to him as a consequence of the trial court's ruling. Therefore, we find no merit to this assignment of error.
Pro Se Assignment of Error No. 8.
The Defendant argues that the trial court erred when it did not put its original jury instructions in the record.
The June 13, 2014 transcripts of the objections to the jury instructions reflect that defense counsel objected to changes requested by the State to certain paragraphs in the trial court's original instructions. Defense counsel then requested that the trial court's original instructions be filed into the record. The trial judge responded that she did not have a copy; that she had amended her instructions; and that she had "probably amended them permanently, some of those."
The record contains a copy of the trial court's proposed jury instructions. A comparison of these instructions to the actual instructions given to the jury, as reflected by the June 13, 2014 transcript, shows that this copy of the trial court's proposed jury instructions is the trial court's "permanently" amended copy, not the original copy of proposed instructions considered in the unrecorded jury instruction conference. The above comments by the trial court when discussing the matter show that the court edited its original instructions on a computer without saving a digital or hard copy of the original instructions.
Defendant argues that because he cannot compare the court's original proposed instructions with the amended ones he is unable to raise "proper claims to my trial lawyer objection [sic] to the jury instructions."
Defendant's argument essentially is that the record is incomplete for appellate purposes. La. Const. art. I, § 19 provides, in pertinent part: "No person shall be subjected to imprisonment ... without the right of review based upon a complete record of all evidence upon which the judgment is based." La. C.Cr.P. art. 843 requires that, in a felony case such as the present one, the clerk or the court stenographer shall record all of the proceedings, including "charges by the court, and objections, questions, statements, and arguments of counsel."
Defendant cites no authority for the argument that a written copy of the trial court's original proposed jury instructions must be included in the record—whether the proposed instructions were amended before they were given to the jury or not. Jury instructions are not "evidence upon which the judgment is based," as contemplated by La. Const. art. I, § 19. "Proposed" jury instructions/charges do not constitute "charges" by the court as contemplated by La. C.Cr.P. art. 843.
The record contains a transcript of the trial court's jury "charges" and defense counsel's "objections" to those charges, in accordance with La. C.Cr.P. art. 843. Therefore, the record is not "incomplete" insofar as the jury "charges" or defense counsel's "objections" thereto.We find no merit to this assignment of error.
Counseled Assignment of Errors No. 1 and 2.
Defendant argues that his counsel was ineffective in failing to object to his seven consecutive maximum five-year sentences and seven maximum fines of $5,000 on each count as unconstitutionally excessive. Defendant also argues that his sentences/fines are unconstitutionally excessive.
Because we vacate Defendants' sentences and fines on his convictions of five counts of simple kidnapping, we address only Defendants' maximum consecutive sentences of five years and $5,000 in fines on each of his two convictions of negligent homicide.
The Louisiana Constitution explicitly prohibits excessive sentences. See La. Const. art. I, § 20. Even though a sentence is within the statutory limits, the sentence may still violate a defendant's constitutional right against excessive punishment. State v. Martin, 13–0628, p. 16 (La.App. 4 Cir. 5/28/14), 141 So.3d 933, 943. A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Wilson, 12–1765, p. 23 (La.App. 4 Cir. 2/12/14), 138 So.3d 661, 677. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Vargas–Alcerreca, 12–1070, p. 25 (La.App. 4 cir. 10/2/13), 126 So.3d 569, 583.
In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La. C.Cr.P. art. 894.1, and whether the sentence is warranted under the facts established by the record. State v. Jones, 12–0891, p. 39 (La.App. 4 Cir. 8/7/13), 122 So.3d 1065, 1087. If the reviewing court finds adequate compliance with La. C.Cr.P. art. 894.1, the court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious offenders. Id.
Even where there has not been full compliance with La. C.Cr.P. art. 894.1, however, resentencing is unnecessary where the record shows an adequate factual basis for the sentence imposed. State v. Santos–Castro, 12–0568, p. 30 (La.App. 4 Cir. 7/31/13), 120 So.3d 933, 951. Further, La. C.Cr.P. art. 881.4(D) expressly states that an "appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed."
Defendant's sentences on each of the two counts of negligent homicide are the maximum—imprisonment at hard labor for five years, and a fine of $5,000. The trial court ordered both five-year sentences to be served consecutively, and imposed two fines of $5,000.
Defendant argues that he is not one of the "most egregious offenders" for whom maximum sentences are "reserved." Jones, supra.
In sentencing Defendant, the trial court went over the facts of the case, noting that Defendant held five people at gunpoint while his accomplice murdered three people. The court noted that because of Defendant's actions, three persons lost their lives, two others were severely injured, both physically and emotionally; and those persons continue to carry their scars. The trial court referred to the cruelty exhibited toward the victims. The court called it a "horrific crime." The court noted Defendant's use of threats and actual violence and his use of a dangerous weapon, a fire arm. The court talked of the high-speed chase necessitated by Defendant and his co-perpetrators fleeing the scene of the crime in Mr. Leslie's stolen car, with Mr. Leslie's stolen safe. The court stated that it believed Defendant had received all the mercy to which he was entitled when the jury convicted him of all lesser offenses.
As for the consecutive nature of the two five-year sentences, La. C.Cr.P. art. 883 states that "[i]f the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively." When consecutive sentences are imposed for crimes arising out of the same act or transaction, the trial court must articulate particular justification for such sentences beyond a mere articulation of the standard sentencing guidelines set forth in La. C.Cr.P. art. 894.1. Martin, 13–0628 at p. 21, 141 So.3d at 946.
The trial court first gave reasons for sentencing Defendant to the maximum sentence of five years imprisonment at hard labor on each count. The court then ordered that each five-year sentence be served consecutively, stating separate reasons.
I base this on the cruelty to your victims, eight victims who were either killed or otherwise suffered injuries as a result of your actions, your use of threats and actual violence in carrying out several offenses, and your use of a dangerous weapon in the commission of these offenses. This was a horrific crime. I find the jury has given you all the mercy that you deserve.
Considering the totality of the circumstances, including the fact that no part of Defendant's sentence is without the benefit of parole, probation or suspension of sentence, we find that the maximum sentences of imprisonment and maximum fines, as well as the running of the sentences of imprisonment consecutively, do not shock the conscience.
Thus, even assuming defense counsel's failure to object to the sentences and fines was deficient, Defendant has failed to show there is a reasonable probability that, but for counsel's deficient performance, he would have prevailed on his claims that the sentences and/or fines were unconstitutionally excessive in any way.
We find no merit to counseled Assignment of Errors No. 1 and 2.
State Writ Application No. 2015–K–0082.
The State argues that the trial court erred in finding that Defendant was not a second-felony habitual offender.
The State alleges that Defendant is a second-felony habitual offender based on two prior convictions resulting from guilty pleas entered on May 8, 2009, as to one count of illegal use of a weapon, a violation of La. R.S. 14:94 ; and one count of possession of a firearm with an obliterated serial number, a violation of La. R.S. 14:95.7. At the January 9, 2015 hearing on the multiple bill, the trial court found that the State did not prove that Defendant was the same person from the 2009 convictions alleged in the multiple bill of information.
A review of the record reflects that the State elected to multiple bill Defendant on all of the seven counts on which he was convicted. We have reversed Defendant's convictions on five of these counts.
In light of our reversal, we grant the State's writ application, and vacate the trial court's January 9, 2015 judgment finding that Defendant is not a second-felony habitual offender. We further remand the matter to give the State the opportunity to re-file the multiple bill of information. We do not decide whether the trial court was correct in ruling that Defendant was not a second-felony habitual offender.
CONCLUSION
For the foregoing reasons, we reverse Defendant's convictions and vacate his sentences and fines for simple kidnapping on Counts 1 through 5, and we remand the case for a new trial on those five counts. We further affirm Defendant's convictions and consecutive sentences and fines for negligent homicide in Counts 7 and 8. Finally, we grant the State's writ application, vacate the trial court's judgment that Defendant was not a second-felony habitual offender, and remand the matter to give the State the opportunity to re-file the multiple bill of information.
AFFIRMED IN PART, REVERSED IN PART WRIT GRANTED, JUDGMENT VACATED, REMANDED
DYSART, J., concurs in the result.
ON REHEARING
An opinion in this case was originally rendered on July 6, 2016. The State sought rehearing as it had not been served with a copy of the defendant's pro se brief, which raised an issue not raised by the defendant's appellate counsel. The State argues that it did not have an opportunity to address the issue of whether simple kidnapping is a responsive verdict to the charge of second degree kidnapping, and that the original opinion is in direct conflict with this Court's prior opinion in State v. Vargas–Alcerreca , 12–1070 (La.App. 4 Cir. 10/2/13), 126 So.3d 569. This Court granted the State's application for rehearing, and sat en banc to decide if its previous ruling should be overruled.
15–0364 (La.App. 4 Cir. 7/6/16), 216 So.3d 1019, 2016 WL 3612898.
In Applications for Rehearing, appellate counsel and the defendant pro se argue that our initial opinion was erroneous in that we ordered a new trial on Counts 1–5, rather than ordering the trial court to enter a judgment of acquittal. Considering our ruling herein, this issue is rendered moot.
After again hearing argument from the parties, the Court finds that its previous decision in Vargas–Alcerreca should not be overruled. Accordingly, for the following reasons, we vacate the previously rendered opinion, affirm the defendant's convictions on all counts, grant the State's writ application, reverse the trial court's ruling as to habitual offender status, vacate the previous sentences, and remand this matter to the trial court for sentencing in accordance with this opinion
DISCUSSION
In the original opinion, this Court found that the trial court's jury instruction listing simple kidnapping as a responsive verdict to a charge of second degree kidnapping was error patent, and reversed the defendant's five simple kidnapping convictions. Price , 15–0364, p. 6, 216 So.3d at 1023–24, citing State v. Graham, 14-1801, p. 5 (La. 10/14/15), 180 So.3d 271, 275. The Court also relied on State v. Jones , 13–1118, p. 6 (La.App. 4 Cir. 1/30/14), 156 So.3d 126, for the position that "[a] non-responsive verdict is a patent error which does not require a contemporaneous objection."
We begin our analysis with the relevant provisions of the Louisiana Code of Criminal Procedure. Article 814 A sets out responsive verdicts that are legislatively authorized, but second degree kidnapping is not one of those enumerated. Article 815 provides that the responsive verdicts in all cases not provided for in Article 814 are guilty; guilty of a lesser and included grade of the offense charged; and, not guilty.
In Price , the trial court instructed the jury that the responsive verdicts to the charge of second degree kidnapping were guilty, guilty of an attempted second degree kidnapping, guilty of simple kidnapping, guilty of attempted simple kidnapping, and not guilty. The record does not reflect that defense counsel objected to the trial court's inclusion of simple kidnapping (or attempted simple kidnapping) as a responsive verdict to the five charges of second decree kidnapping. The jury returned the lesser verdict of simple kidnapping on all five counts.
In the prior opinion, five possible scenarios were noted in which evidence sufficient to support a conviction for second degree kidnapping would necessarily support a conviction for simple kidnapping, all of which involved the offender forcibly seizing and carrying the victim from one place to another. See La. R.S. 14:44.1 B(1) and A (1)–(5), and La. R.S. 14:45 A(1). However, in ten other scenarios, evidence sufficient to support a conviction for second degree kidnapping would not support a conviction for simple kidnapping. See La. R.S. 14:44.1 B(2) and (3) and A(1)–(5). Price , 15–0364, p. 5, 216 So.3d at 1023.
The Court relied on the recent decision of the Louisiana Supreme Court, State v. Graham, supra , to reach the conclusion that simple kidnapping was not a responsive verdict. Graham defined lesser and included offenses as "those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged" and found that "if any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive." Price , 15–0364, p. 4, citing Graham , 14–1801, p. 5, 180 So.3d at 275.
However, in direct conflict with Price is this court's ruling in Vargas–Alcerreca , wherein it was stated plainly and without elaboration that simple kidnapping is an authorized responsive verdict to second degree kidnapping. 12–1070, pp. 21–22, 126 So.3d at 582.
Our review of the jurisprudence reveals that the Louisiana Supreme Court and other appellate courts have reached, at least implicitly, the same conclusion finding no error in including simple kidnapping as authorized on the verdict form. In Vargas–Alcerreca, supra , this Court cited State v. Porter , 93-1106, pp. 3–4 (La. 7/5/94), 639 So.2d 1137, 1140, in support of the proposition that simple kidnapping is a responsive verdict to second degree kidnapping. We now note additionally that although Porter did not address the issue specifically, it tacitly endorsed that conclusion when considering the defendant's assigned error pertaining to his forcible rape conviction by noting that the appellate court had correctly decided assignments of error pertaining to the defendant's other conviction, for simple kidnapping—a verdict returned by the jury to the charged offense of second degree kidnapping. 93–1106, pp. 3–4; 639 So.2d at 1140. In State v. Tapps , 02–0547 (La.App. 5 Cir. 10/29/02), 832 So.2d 995, the Fifth Circuit affirmed a conviction of simple kidnapping returned by the jury as a responsive verdict in a case in which the defendant had been charged with second degree kidnapping.
The court of appeal in Porter did not address the issue specifically, but found the State presented sufficient evidence to support the simple kidnapping conviction. State v. Porter, 615 So.2d 507 (La.App. 3d Cir. 1993).
The foregoing cases illustrate that simple kidnapping is a valid responsive verdict to a charge of second degree kidnapping, This would also be consistent with the spirit of the long-standing rule set out by the Louisiana Supreme Court in State ex rel. Elaire v. Blackburn , 424 So.2d 246 (La. 1982), which held that "[A]t least when the defendant fails to interpose a timely objection to a legislatively responsive verdict, this court will not reverse the conviction if the jury returns such a verdict, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged." (Emphasis supplied). Elaire , 424 So.2d at 252 ; see also State v. Taylor , 14–0432, p. 12–13 (La. 3/17/15), 166 So.3d 988, 996. ("In any event, unauthorized entry of a place of business is a statutorily-provided responsive verdict to a charge of simple burglary, La. C.Cr.P. Art. 814(A)(42) and the evidence presented at trial was sufficient to have supported a verdict for the charged offense of simple burglary. The evidence was therefore sufficient to support a verdict for the lesser offense and statutory responsive verdict as to which the defense had no objection."); State v. Black , 09–1664, p. 14 (La.App. 4 Cir. 6/17/10), 41 So.3d 1243, 1251 ("In the present matter, the record on appeal shows no objection to any of the potential responsive verdicts for aggravated battery, as listed in La. C.Cr.P. Art. 814(14). Accordingly, this Court need only consider if the evidence was sufficient to support a conviction of the greater offense, aggravated battery."); State in the Interest of A.V., 94-0042 (La.App. 4 Cir. 5/26/94), 637 So.2d 1243, 1246 ("Because the defendant in this case did not move to exclude the responsive verdict of attempted simple rape from consideration by the trial court, we hold he cannot complain now of insufficient evidence to support it. His conviction can be affirmed if the evidence is sufficient to support the crime charged.").
In its application for rehearing, the State also argues convincingly that the result reached in Price "presents a troubling logical dissonance—i.e., that the most basic form of kidnapping known to our law is somehow not a responsive verdict to a more serious form of kidnapping." That argument is further supported by the inclusion of both second degree and simple kidnapping as legislatively authorized responsive verdicts to aggravated kidnapping. See La. C.Cr.P. Art. 814 (18) ; see also 17 La. Civ. L. Treatise, Criminal Jury Instructions § 10:68 (3d ed.) (Second degree kidnapping—Imprisoning or forcible secreting (R.S. 14:44.1(B)(3) ) ("Since the offense is governed by the general responsive verdict provision of La. C.Cr.P. Art. 815, attempted second degree kidnapping is responsive. Simple kidnapping and attempted kidnapping are also lesser included offenses."). The "at least" language in Elaire also suggests that the Supreme Court contemplated situations such as the instant one in which it might uphold a responsive verdict not specifically authorized by the legislature (and not necessarily a lesser included offense in all circumstances) when the defendant does not object.
In finding that Graham does not apply to the present case, we discuss Graham in greater detail. The sole issue in Graham was whether molestation of a juvenile was a lesser and included grade of the offense of the former crime of aggravated incest. The trial court permitted the State to add molestation of a juvenile as a responsive verdict to the charged offense of aggravated incest, after both the State and the defense had rested their cases, and over the objection of the defendant. The trial court instructed the jury accordingly, and the jury returned a verdict of guilty of molestation of a juvenile. The court of appeal affirmed the defendant's conviction and sentence. The Louisiana Supreme Court reversed, stating:
The elements of the former crime of aggravated incest have been incorporated into the crime of aggravated crime against nature. See La. R.S. 14:89.1 A(2).
The Court of Appeal erred both in State v. Ardoin , 08–1504 (La.App. 1 Cir. 2/13/09), 6 So.3d 237,] and in the present case in finding that because molestation of a juvenile is enumerated as one of many means by which aggravated incest can be committed it is necessarily a lesser and included grade of the offense. Because aggravated incest can be committed in numerous ways, only one of which is molestation of a juvenile, the evidence sufficient to support conviction of aggravated incest may not necessarily support conviction for molestation of a juvenile. It might instead, depending on the circumstances of the case, support a conviction for sexual battery, carnal knowledge, indecent behavior, and so on. Stated another way, many reasonable scenarios can be imagined wherein the greater offense is committed without perpetration of the lesser offense. Accordingly, molestation of a juvenile is not a lesser and included grade of aggravated incest and the trial court erred in including "guilty of molestation of a juvenile" among the responsive verdicts.
Graham , 14–1801, pp. 5–6; 180 So.3d at 275 (emphasis supplied). The narrowest reading of Graham thus supports this Court's holding in Price .
However, Graham was a distinctive case, which the Supreme Court described as "present[ing] a myriad of problems," and does not appear controlling in this context as it involved a unique set of circumstances and presented an unusual procedural posture. In Graham the State charged the defendant with aggravated incest, but at the conclusion of its case and after the defense had rested, the State became aware that it had failed to present evidence of affinity, a required element of the crime. The court then granted, over defense objection , the State‘s request to add molestation of a juvenile as a responsive verdict to the charged offense. The Supreme Court found that under no circumstances could molestation of a juvenile qualify as a lesser included offense of aggravated incest because the former crime requires the act be accomplished "by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile" elements not required to sustain an incest conviction. The Supreme Court also found it significant that the proposed responsive verdict of molestation carried the exact same range of penalties as the charged crime. Compare La. R.S. 14:81.2 D(1) (Molestation of a juvenile when the victim is under the age of 13) (25 to 99 years imprisonment at hard labor with at least 25 years to be served without benefit of parole) with La. R.S. 14:78.1 D(2) (Aggravated incest when victim is under the age of thirteen and offender is at least seventeen) (25 to 99 years imprisonment at hard labor with at least 25 to be served without benefit of parole). The Court in Graham found the evidence constitutionally insufficient to prove the nonresponsive offense of molestation of a juvenile—which it found was an independent reason warranting the vacating of the defendant's conviction. Graham , 14–1801, p. 9, 180 So.3d at 277. The Court further found, given the State's failure to prove an essential element of the charged crime of aggravated incest, that "the jury implicitly acquitted defendant of that charge by returning a verdict of guilty of molestation of a juvenile," and such "implicit acquittal" was a bar to any subsequent prosecution of the defendant for aggravated incest. Given the scenario described above, the Graham court concluded that the proceedings had been rendered "fundamentally unfair."
The proceedings were rendered fundamentally unfair when the state was permitted to add "guilty of molestation of a juvenile" as a responsive verdict after all evidence had been presented. Molestation of a juvenile is not a lesser and included grade of the offense of aggravated incest because the evidence sufficient to support conviction of aggravated incest may not necessarily support conviction for molestation of a juvenile. Furthermore, defendant objected to the addition of the responsive verdict and the evidence presented at trial as insufficient to support the jury's return of that verdict. Nonetheless, the jury's return of what it was instructed was a lesser responsive verdict is an implied acquittal of the charge of aggravated incest, which ended defendant's jeopardy and is a bar to a subsequent prosecution. Graham, 14–1801, p. 11, 180 So.3d at 278.
Price presents none of the fundamental unfairness issues present in Graham . The State did not alter its theory of the case. The factual background contained in the original opinion sets forth that the defendant, along with his counterparts, planned and executed a robbery at the home of the victim, Troy Leslie. Seven victims were present at the residence, and while the defendant sequestered five of the victims at gunpoint in the garage, an accomplice killed Leslie and shot his girlfriend in the eye as they lie in bed. Thereafter, two of the five victims held at bay by the defendant in the garage were killed by the defendant's cohorts.
Based on these facts, unlike Graham , the evidence here was clearly sufficient to convict defendant of all five counts of the charged offense of second degree kidnapping—he imprisoned the five victims in the garage while armed with a gun.
Louisiana Revised Statute 14:44 provides, in part:
A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
* * *
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
* * *
(3) The imprisoning or forcible secreting of any person.
Simple kidnapping is described in part as: "The intentional and forcible seizing and carrying of any person from one place to another without his consent." La. R.S. 14:45 A(1).
As simple kidnapping can be a lesser included offense to second degree kidnapping, we conclude that simple kidnapping is a responsive verdict; and therefore a contemporaneous objection to the jury instruction is required. See La. C.Cr.P. Art. 841 (providing that "[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence"). To hold differently would allow the defense to acquiesce to an otherwise logical jury instruction containing a lesser included offense, and later be allowed to set aside a compromise verdict as non-responsive.
Accordingly, we conclude that although the present case does not involve a legislatively authorized responsive verdict, it nonetheless provides a verdict which is defined as a crime by the legislature (simple kidnapping), which is responsive to the charge of second degree kidnapping. The defense did not raise a timely objection to the inclusion of simple kidnapping in the jury charges, and thereby benefitted by the jury returning a verdict with a lesser penalty than the crime charged. As the evidence supports the charged crime of second degree kidnapping, we find no basis for reversing the convictions for simple kidnapping.
Lastly, the defendant argues that there was insufficient evidence to convict on all seven charges. We have previously determined that the evidence was sufficient to convict on the five charges of second degree kidnapping. We also find that the facts support the convictions on the two counts of negligent homicide.
Negligent homicide is defined as the "killing of a human being by criminal negligence." La. R.S. 14:32 A. "Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances." La. R.S. 14:12.
The factual scenario described above fully supports a finding of sufficient evidence to convict the defendant of negligent homicide.
WRIT NO. 2015–K–0082:
Consolidated with this appeal is an application for supervisory writ filed by the State seeking review of the trial court's ruling that the defendant was not a second-felony habitual offender. As we find error in that ruling, we grant the State's writ and reverse the ruling of the trial court.
Following the trial, the State filed a bill of information charging the defendant as a second-felony habitual offender. The bill was based on two prior convictions resulting from guilty pleas entered on May 8, 2009, as to one count of illegal use of a weapon, a violation of La. R.S. 14:94, and one count of possession of a firearm with an obliterated serial number, a violation of La. R.S. 14:95.7.
The burden of proof in habitual offender proceedings is set forth in State v. White , 13–1525 (La. 11/8/13), 130 So.3d 298 :
To meet its burden of proof under the Habitual Offender Act, the State must establish both the prior felony conviction and the defendant's identity as the same person who committed the prior felony. State v. Payton , 00–2899, p. 6 (La. 3/15/02), 810 So.2d 1127, 1130 ; State v. Neville , 96–0137, p. 7 (La.App. 4 Cir. 5/21/97), 695 So.2d 534, 539–40. This Court has repeatedly held the Habitual Offender Act not require the State to use a specific type of evidence to carry its burden at a habitual offender hearing. Rather, prior convictions may be proved by any competent evidence. Payton , 00–2899 at p. 8, 810 So.2d at 1132 ; State v. Blackwell , 377 So.2d 110, 112 (La. 1979) ; State v. Curtis , 338 So.2d 662, 664 (La. 1976).
White , 13–1525, p. 2, 130 So.3d at 300.
The State must prove not only the prior felony conviction, but also must prove beyond a reasonable doubt that the defendant is the same person who committed the prior felony. State v. Brown , 11–1656, p. 2 (La. 2/10/12), 82 So.3d 1232, 1234 ; State v. Golden , 13–0012, p. 2 (La.App. 4 Cir. 10/30/13), 126 So.3d 829, 832.
In this case, the State presented as evidence the testimony of the NOPD officer who fingerprinted the defendant in court the day of the multiple bill hearing. The officer identified a certified packet of information that contained, among other things, an arrest register reflecting a date of arrest as 1/22/09 and a booking date of 1/23/09. The police officer matched the fingerprints taken of the defendant that day in court to a fingerprint card he brought with him to court that day for "identifying purposes." He also matched identifying information as to the person listed on the arrest register to identifying information for the person named on the fingerprint card brought with him to court that day. He testified that the names, social security numbers, dates of birth, state identification number and the charges themselves, were the same on both documents. The certified pack offered into evidence contained a 3/23/09 Orleans Parish bill of information charging Jubbard Price with one count of illegal use of a weapon, and one count of possession of "an unregistered firearm." The pack also contained a waiver of constitutional rights and plea of guilty form dated May 8, 2009, in Case # 484–534, reflecting a plea of guilty to both charges, signed by Jubbard Price. A minute entry from the same date mirrors the information on the guilty plea form. A docket master entry on that date contains the same information.
The defense objected to the writ application speculating that the trial court based its finding that the State had not met its burden of proof on the fact that the State failed to introduce the arrest register or any other documentation for the current case to match the identifying information produced from the prior felony convictions.
The defense also suggests that the trial court ruled against the State as the fingerprint card brought to the hearing by the NOPD officer was an uncertified printed document, and the officer testified that he was not the officer who previously fingerprinted the defendant, nor was he a custodian of the fingerprint card.
This Court has expressly held that "fingerprints are not absolutely required" to prove that a defendant charged as a habitual offender is the same person previously convicted. State v.Watkins, 13–1248, p. 38 (La.App. 4 Cir. 8/6/14), 146 So.3d 294, 317, citing White, supra ; State v. Galle , 11–0930, p. 22, (La.App. 4 Cir. 2/13/13), 107 So.3d 916, 930, citing State v. Westbrook , 392 So.2d 1043 (La. 1980) (finding in a second offense DUI case that a driver's license number, sex, race, and birth date all identified the prior offender as the defendant, and thus that the State proved the defendant's identity as the same person previously convicted).
In the present case, even excluding the fingerprint evidence, we find there is sufficient evidence to prove beyond a reasonable doubt that the defendant is the same person previously convicted. There is evidence that both the previous offender and Jubbard Price are black men; the date of birth is the same in the docket master for the present case, and in the bill of information and other documents contained in the certified pack. Further, although defense counsel speculates that the trial court found the use of a "generated" fingerprint card to be problematic, especially in light of the officer testifying that he was not the custodian of the card, we note that the defense counsel stipulated that the officer was an expert in the taking, examining and identification of latent fingerprints.
Thus, for the above reasons, we grant the State's writ, reverse the ruling of the trial court finding that the State did not prove that Jubbard Price was a second-felony habitual offender, vacate the previous sentences, and remand for sentencing in accordance with this opinion.
CONCLUSION:
For the reasons set forth above, on rehearing en banc, we vacate the previous opinion, and affirm the defendant's convictions on all counts. We further grant the State's writ application, reverse the trial court's ruling as to habitual offender status, vacate the previous sentences, and remand this matter to the trial court for sentencing in accordance with this opinion.
APPEAL AFFIRMED; WRIT GRANTED, JUDGMENT REVERSED; SENTENCES VACATED; REMANDED FOR SENTENCING
LOBRANO, J., CONCURS IN THE RESULT OF THE MAJORITY OPINION
BANGERIS, J., DISSENTS
JENKINS, J., DISSENTS WITH REASONS
BARTHOLOMEW–WOODS, J., CONCURRING IN PART, DISSENTING IN PART WITH REASONS
BAGNERIS, J. DISSENTS.
I dissent for the reasons assigned by Judge Jenkins.
JENKINS, J., DISSENTS WITH REASONS
In light of the longstanding legal principles governing responsive verdicts, I find that Vargas–Alcerreca is an incorrect statement of the law with respect to the responsiveness of a verdict of simple kidnapping to a charge of second degree kidnapping. I respectfully dissent from the majority's opinion, and would reverse Defendant's convictions on five counts of simple kidnapping. Additionally, because the jury's non-responsive verdict was an implied acquittal on the charges of second degree kidnapping, I would remand, and order the trial court to enter a post-verdict judgment of acquittal on those charges. With respect to Defendant's convictions on counts 7 and 8 (negligent homicide), I would affirm the consecutive sentences for a term of five years imprisonment at hard labor, and the fines of $5,000.00 per count. Finally, I would grant the State‘s writ application, vacate the trial court's judgment that Defendant was not a second-felony offender, and remand the matter to give the State the opportunity to re-file or amend the multiple bill of information to exclude the five counts of simple kidnapping (counts 1–5).
State v. Graham : The Law of Lesser and Included Offenses
I begin with the well-established law governing lesser and included offenses. The Louisiana Supreme Court's test for determining the responsiveness of a verdict for a lesser and included offense involves a comparison of the statutory elements of the offenses in question, and has been expressed as follows:
Lesser included grades of a charged offense are those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged, and, thus, evidence sufficient to support conviction of the greater offense will necessarily support conviction of the lesser and included offense.
State v. Johnson , 01–0006, p. 4 (La. 5/31/02), 823 So.2d 917, 921 (emphasis added); State v. Graham , 14–1801, pp. 5–6 (La. 10/14/15), 180 So.3d 271, 275.
For decades, the Supreme Court has also expressed the "essential elements" test as whether the definition of the greater offense "necessarily includes" all the elements of the lesser offense. State v. Simmons , 422 So.2d 138, 142 (La. 1982) ; State v. Robertson , 06–1537, p. 7 (La. 1/16/08), 988 So.2d 166, 171 ; State v. Booker , 385 So.2d 1186, 1190 (La. 1980). See also State v. Jackson , 04–2863, p. 12 (La. 11/29/05), 916 So.2d 1015, 1022 n.12 (lesser and included offense is "necessarily required in every case of greater offense"). Thus, "[i]f the greater offense could be committed without commission of the lesser offense, then a verdict for the lesser offense cannot be responsive." State v. Mosley , 485 So.2d 658, 660 (La.App. 4 Cir. 1986) ; State v. Maxwell , 11–0564, p. 30 (La.App. 4 Cir. 12/21/11), 83 So.3d 113, 131.
This court applied this "elements" test in State v. Rideau, 05–0462 (La.App. 4 Cir. 12/6/06), 947 So.2d 127 ; and State v. Lynch, 97–2426 (La.App. 4 Cir. 2/3/99), 729 So.2d 12.
Subsections (2) through (5) of La. R.S. 14:45 all involve either children or persons "lawfully committed" to an institution.
In 2015, the Louisiana Supreme Court in State v. Graham confirmed that the pertinent (and longstanding) inquiry is as follows: "If any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser offense cannot be responsive." Graham , 14–1801, p. 5, 180 So.3d at 275 (citing Simmons , 422 So.2d at 142 (quoting State v. Poe , 214 La. 606, 38 So.2d 359, 363 (1948) ). See also State v. Wilson , 12–1765, p. 28 (La. App. 4 Cir. 2/12/14), 138 So.3d 661, 680 ; State v. Ennis , 11–0976, p. 11 (La.App. 4 Cir. 7/5/12), 97 So.3d 575, 582 ; State v. Maxwell , 11–0564, p. 28 (La.App. 4 Cir. 12/21/11), 83 So.3d 113, 130 ; State v. Simmons , 01–0293, p. 4 (La. 5/14/02), 817 So.2d 16, 19 ; State v. Lynch , 97–2426 La.App. 4 Cir. 2/3/99, 729 So.2d 12, 13 ; State v. Dauzat , 392 So.2d 393, 395 n.2 (La. 1980).
At this point, I must emphasize that Graham is significant in this case solely because it sets forth the well-established rule of law that governs lesser and included offenses. Contrary to the majority and concurring opinions, it is irrelevant whether Graham is "factually distinguishable," "distinctive," or presents a "unique set of circumstances" and/or an "unusual procedural posture."
The offenses of second degree kidnapping and simple kidnapping certainly can have an element in common, i.e., both can involve the "forcible seizing and carrying of any person from one place to another." See La. R.S. 14:44.1(B)(1) ; La. R.S. 14:45(A)(1). The pertinent inquiry, however, does not end there. Graham dictates that courts examine whether "any reasonable state of facts can be imagined" (i.e., any "reasonable scenario") in which the greater offense of second degree kidnapping could be committed without perpetration of the lesser offense of simple kidnapping. Graham , 14–1801, p. 6, 180 So.3d at 275.
Reasonable Scenarios
As noted by the majority opinion, there are 15 ways a defendant can commit the offense of second degree kidnapping, each with separate elements. In five of those instances, a defendant can commit second degree kidnapping by "imprisoning" or "forcibl[y] secreting" any person when the victim is one of the types listed in La. R.S. 14:44.1(A). See La. R.S. 14:44.1(B)(3) and (A)(1)–(5).
The offense of simple kidnapping, however, does not include the element of "imprisoning" or "forcibl[y] secreting" a person. See La. R.S. 14:45(A). Because second degree kidnapping can be committed in "numerous ways," only some of which would also constitute simple kidnapping, the evidence sufficient to support a conviction of second degree kidnapping may not "necessarily support" a conviction of simple kidnapping. Graham , 14–1801, p. 6, 180 So.3d at 275. Thus, because the greater offense of second degree kidnapping "could possibly be committed without perpetration of the lesser offense," simple kidnapping "is not truly a lesser and included offense." Simmons , 422 So.2d at 143. I find, therefore, that Vargas–Alcerreca cannot stand.
Statutory Elements Test
I disagree with any contention that the inquiry regarding lesser and included offenses should be driven by reference to conduct proved at trial. As discussed above, the "lesser and included offense" test in Louisiana is whether the essential elements of the lesser offense are "necessarily included" in the elements of the greater offense charged. This test requires a comparison between offenses. Because offenses are statutorily defined, I find that this comparison is properly conducted only by reference to the statutory elements of the offenses in question, and not by reference to conduct proved at trial. See Schmuck v. United States , 489 U.S. 705, 720, 109 S.Ct. 1443, 1453, 103 L.Ed.2d 734 (1989) (adopting "statutory elements" test, which calls for an objective, textual comparison of criminal statutes, and "does not depend on inferences that may be drawn from evidence introduced at trial"). See State v. Johnson , 01–0006, p. 4 (La. 5/31/02), 823 So.2d 917, 920–21 (citing the Schmuck statutory "elements" test). As stated in Schmuck, "the elements approach permits both sides to know in advance what jury instructions will be available and to plan their trial strategies accordingly." Id. Moreover, "the objective elements approach ... promotes judicial economy by providing a clearer rule of decision" and by permitting appellate courts to assess jury instructions "without reviewing the entire evidentiary record for nuances of inference." Schmuck , 489 U.S. at 720–21, 109 S.Ct. at 1453. Most importantly, I find that the objective elements test is compelled by the due process "right of the defendant to [have] notice of the charge brought against him." Schmuck , 489 U.S. at 718, 109 S.Ct. at 1451.
The Schmuck court addressed Fed. R. Cr. P. 31(c), which states that a defendant may be found guilty of "an offense necessarily included in the offense charged." (Emphasis added.)
The relevant legal definition of carry is "[t]o convey or transport." Black's Law Dictionary (10th ed. 2014).
State v. Porter
The majority opinion asserts that "the Louisiana Supreme Court and other appellate courts have reached, at least implicitly, the same conclusion" as Vargas–Alcerreca . The majority cites State v. Porter , 93-1106 (La. 7/5/94), 639 So.2d 1137 (which was cited in Vargas–Alcerreca ), and which, according to the majority, "tacitly endorsed" the Vargas–Alcerreca court's holding that simple kidnapping is a valid responsive verdict to a charge of second degree kidnapping.
In Vargas–Alcerreca , the court relied on the statement in Porter that summarily "affirm[ed] the simple kidnapping conviction, concluding that the court of appeal correctly decided the assignments of error pertaining to that conviction." Vargas–Alcerreca , 12–1070, p. 21, 126 So.3d at 582 (citing Porter , 93–1106, pp. 3–4, 639 So.2d at 1140 ). However, as acknowledged in footnote 3 of the majority opinion, the Porter court "did not address the issue specifically [the responsiveness of a simple kidnapping conviction], but found the State presented sufficient evidence to support the simple kidnapping conviction." In Porter , the sole assignment of error relating to the simple kidnapping conviction was the sufficiency of the evidence. See State v. Porter , 615 So.2d 507, 513–14 (La. App. 3d Cir. 1993). The responsiveness of the verdict of simple kidnapping was never raised as an assignment of error; the court only addressed the trial court's exclusion of the legislatively authorized responsive verdicts of simple rape and attempted simple rape to a charge of aggravated rape under La. C.Cr.P. Art. 814. Porter , 93–1106, p. 5, 639 So.2d at 1140 n.6. Accordingly, I do not find that the Porter court "implicitly" reached the same conclusion as Vargas–Alcerreca .
Likewise, in the other case cited by the majority opinion, State v. Tapps , 02–0547 (La.App. 5 Cir. 10/29/02), 832 So.2d 995, the Fifth Circuit did not address the issue of whether simple kidnapping was a responsive verdict to the charged offense of second degree kidnapping, but instead limited its review to the sufficiency of the evidence.
In sum, neither Porter nor Tapps supports the Vargas–Alcerreca decision.
"Logical Dissonance"
The majority also concludes that a finding that simple kidnapping is not a responsive verdict to second degree kidnapping "presents a troubling logical dissonance" because the legislature has authorized both simple kidnapping and second degree kidnapping as responsive verdicts to aggravated kidnapping under La. C.Cr.P. Art. 814(18). I agree with this court in State v. King , 00–0618 (La.App. 4 Cir. 3/7/01), 782 So.2d 654, that, in enacting Article 814, "the legislature had an opportunity to ... enact a statute relative to a lesser included offense" of simple kidnapping, "and they chose not to include such an offense. Therefore, this Court will not read a lesser included offense into the statute." Id ., 00–0618,p. 6, 782 So.2d at 659.
State ex rel. Elaire v. Blackburn
The majority states that its decision to uphold Vargas–Alcerreca is "consistent with the spirit of the long-standing rule set forth by the Louisiana Supreme Court in State ex rel. Elaire v. Blackburn ." In Elaire , the court declared that "at least when the defendant fails to interpose a timely objection to a legislatively responsive verdict , this court will not reverse the conviction if the jury returns such a verdict, whether or not that verdict is sufficient to support the offense charged." State ex rel. Elaire v. Blackburn , 424 So.2d 246, 252 (La. 1982) (emphasis added). The majority opinion speculates, without any analysis, that the " ‘at least’ language in Elaire ... suggests that the Supreme Court contemplated situations such as the instant one in which it might uphold a responsive verdict not specifically authorized by the legislature (and not necessarily a lesser included offense in all circumstances) when the defendant does not object."
In State v. Porter, supra , the Supreme Court discussed the scope and rationale of Elaire, which specifically addressed the sufficiency-of-the-evidence problem posed by the legislatively authorized verdicts listed in La. C.Cr.P. Art. 814 :
[B]ecause Article 814 contains authorized responsive verdicts which are not truly lesser and included offenses, evidence which is sufficient to support a conviction of the charged offense may not support all of the elements of the responsive offense.
Porter , 93–1106, pp. 5–6, 639 So.2d at 1141.
The Porter court continued:
As long as an authorized responsive verdict is a lesser and included grade of the charged offense and the evidence is sufficient to support a verdict of guilty of the charged offense, there is no problem with sufficiency of the evidence for the responsive verdict.
Porter , 93–1106, p. 8, 639 So.2d at 1142 (emphasis added). I find that the Elaire decision addressed a very specific problem associated with the sufficiency of the evidence in legislatively authorized responsive verdicts. I do not agree with the majority that the "spirit" of the Elaire decision requires its application to this case, which is not governed by La. C.Cr.P. Art. 814.
In response to Elaire, the legislature amended La. C.Cr.P. Art. 814(C), which now states:
Upon motion of the state or the defendant, or on its own motion, the court shall exclude a responsive verdict listed in Paragraph A [legislatively authorized verdicts] if, after all the evidence has been submitted, the evidence, viewed in a light most favorable to the state, is not sufficient reasonably to permit a finding of guilty of the responsive offense.
See Porter, 93–1106, p. 6, 639 So.2d at 1142.
The two other cases cited by the majority, State v. Black, 09–1664 (La.App. 4 Cir. 6/17/10), 41 So.3d 1243 ; and State in the Interest of A.V., 94–0042 (La. App. 4 Cir. 5/26/94), 637 So.2d 1243, both involve legislatively authorized responsive verdicts under Article 814, which are governed by La. C.Cr.P. Art. 814(C) and Elaire.
Contemporaneous Objection Under La. C.Cr.P. Art. 841
It is well-established that a non-responsive verdict is "error patent on the face of the record and therefore reviewable on appeal despite absence of an objection during trial." State v. Turnbull , 377 So.2d 72, 75 (La. 1979) ; State v. Mayeux , 498 So.2d 701, 703 (La. 1986) ; State v. Campbell , 95–1409, p. 3 (La. 3/22/96), 670 So.2d 1212, 1213 (although defendants "acquiesced in the list of responsive verdicts given jurors by the trial judge," the jury's "return of the unresponsive verdicts ... constitutes an error patent on the face of the record"); State v. Hatcher , 02–0633, p. 5 (La.App. 4 Cir. 9/18/02), 828 So.2d 653, 656 ("[A] non-responsive verdict is a patent error and does not require a contemporaneous objection."); State v. Jones , 13-1118, p. 6 (La.App. 4 Cir. 1/30/14), 156 So.3d 126, 129 (same).
Despite this longstanding principle, the majority concludes that Defendant cannot challenge the responsive verdict because he did not make a contemporaneous objection when the trial court instructed the jury that simple kidnapping was a responsive verdict to the charged offense of second degree kidnapping, citing La. C.Cr.P. Art. 841 ("An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.").
If a trial court gives an erroneous jury instruction on responsive verdicts to which no objection was made, but the defendant is convicted as charged or convicted of a valid responsive verdict, then plainly there would be no reversible error. See State v. Foret , 479 So.2d 526, 527 (La. App. 1 Cir. 1985). That is not the case here. Defendant's conviction was based on a jury instruction that resulted in an invalid non-responsive verdict. Although the Supreme Court has held that "absent an objection, deficiencies in the responsive verdicts cannot be availed of upon appeal, in those cases the error existed only in the list of possible verdicts submitted to the jury and not in the actual verdict returned by the jury ." State v. Thibodeaux , 380 So.2d 59, 61 (La. 1980) (emphasis added).
Thus, I disagree with the majority's conclusion that Defendant was required to make a contemporaneous objection in order to challenge the validity of the jury's verdict on appeal.
Double Jeopardy
In Graham , the Supreme Court held that "the jury‘s return of what it was instructed was a lesser responsive verdict" (even though it was not a valid responsive verdict), was an "implied acquittal" of the charged offense, "which ended the defendant's jeopardy and [was] a bar to a subsequent prosecution." Graham , 14–1801, p. 11, 180 So.3d at 278. Accordingly, the Graham court remanded the matter, and instructed the trial court to enter a post-verdict judgment of acquittal. Id. Because this court is bound by Graham , I find that the jury's return of a verdict of simple kidnapping was an implied acquittal on the charges of second degree kidnapping, which ended Defendant's jeopardy and is a bar to a second trial on those charges. Accordingly, I would remand this matter, and instruct the trial court to enter a post-verdict judgment of acquittal of those charges.
BARTHOLOMEW–WOODS, J., CONCURRING IN PART, DISSENTING IN PART WITH REASONS
I agree with the majority's reversal of the ruling that the State did not prove Defendant was a second-felony habitual offender. I further agree with the vacature of the sentences and remand for resentencing. However, as to the majority's opinion affirming Defendant's convictions for simple kidnapping, I respectfully dissent. In my view, the determination of whether simple kidnapping is a lesser included offense of second degree kidnapping necessarily requires an analysis of the facts on a case by case basis.
As noted by the original panel in State v. Price , 15–0364 (La.App. 4 Cir. 7/6/16), 216 So.3d 1019, there are a number of ways "fifteen to be exact" by which a defendant can be found guilty of second degree kidnapping. The panel correctly noted that a defendant can be found guilty if he or she commits one of each act from subsections (A) and (B) of La. R.S. 14:44.1.
Here, the relevant evidence at trial showed as follows:
Donald Johnson, Andrea Price, and Jubbard Price entered Mr. Leslie's residence and began corralling everyone into the garage by giving them the false impression that they were all going to smoke marijuana. The Defendant stayed in the garage and held everyone at gunpoint while Andrea Price and Donald Johnson roamed around the residence, presumably looking for a safe. Donald Johnson went into the master bedroom and shot Mr. Leslie and Ms. Davis in their bed, killing Mr. Leslie and injuring Ms. Davis.
Id. at 1022, at pp. 2–3. The evidence also showed that Donald Johnson, not Defendant, forced two of the victims into the garage where Defendant held them at gunpoint. That evidence could have lead the jury to conclude that Defendant was indeed guilty of second degree kidnapping because the victims were imprisoned in the garage while Defendant was armed with a dangerous weapon or what the victims reasonably believed to be a dangerous weapon. La. R.S. 14:44.1(A)(5) and (B)(3). Instead, the jury came back with verdicts of guilty of simple kidnapping. Like second degree kidnapping, there are several ways one can commit simple kidnapping. Given the facts of this case, only subsection (A)(1) would apply, which provides that simple kidnapping is "[t]he intentional and forcible seizing and carrying of any person from one place to another without his consent."1
Since simple kidnapping is not a legislatively-provided responsive verdict under La. C.Cr.P. Art. 814, this Court must look to La. C.Cr.P. Art. 815 to determine whether simple kidnapping is indeed a responsive verdict to second degree kidnapping. As noted by the majority, with reference to State v. Graham , 14–1801, p. 5 (La. 10/14/15), 180 So.3d 271, 275, lesser included offenses are "those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged."
Longstanding precedent has also held that "if any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive." State v. Poe , 214 La. 606, 620, 38 So.2d 359, 363 (1948). Thus, the original panel in Price concluded that simple kidnapping was not responsive to second degree kidnapping because "a reasonable state of facts can be imagined where the greater offense of second degree kidnapping is committed without perpetration of the lesser offense of simple kidnapping." Price , 15–0364, p. 5, 216 So.3d 1019.
While I agree with the result of the original Price ruling, I do not agree that simple kidnapping is never a responsive verdict to second degree kidnapping. In some cases—those in which the victims are indeed seized and carried—a jury can return a verdict of guilty of simple kidnapping if the State fails to prove one of the additional elements of second degree kidnapping set forth in subsections (A)(1) through (A)(5).2 This necessarily requires analyzing the specific facts of each case.
The majority's opinion suggests that this Court's ruling in State v. Vargas–Alcerreca , 12–1070 (La.App. 4 Cir. 10/2/13), 126 So.3d 569, conflicts. However, a review of the facts of Vargas'Alcerreca shows that simple kidnapping was responsive as that case involved seizure and carrying:
M.V. testified that she followed Mr. Vargas–Alcerreca because he said he was taking her to find her friend, until the point at which she began to feel she was in danger and started running the other way. She testified that Mr. Vargas–Alcerreca ran after her and caught up with her. She then found herself on the ground with Mr. Vargas–Alcerreca on top of her punching her in the face. Eric Gordon testified that he saw a woman, later identified as M.V., run out from behind a building calling for help, but then observed a male grab her and pull her back behind the building . He testified that as he approached the intersection where the building was, he could not see either the woman or her assailant, and he did not know how far down the street they were—in other words, he did not know how far of a distance the assailant had "carried" the victim. Under the simple kidnapping statute, "the distance traversed is immaterial." State v. Bertrand , 247 La. 232, 170 So.2d 386, 388 (1964).
Any rational trier of fact, viewing all the evidence in a light most favorable to the prosecution, could have found that Mr. Vargas–Alcerreca forcibly seized and carried the victim a distance, however short, and thus have found all the essential elements of the offense of simple kidnapping present beyond a reasonable doubt . There is no merit to this assignment of error.
Id. at 582 (emphasis added). The majority also cites to State v. Porter , 93–1106 (La. 7/5/94), 639 So.2d 1137. A review of the facts by the Third Circuit Court of Appeal also reveals that the facts of that case involved seizure and carrying:
The victim, testifying at trial, conceded that she voluntarily entered the car with the defendants for the purpose of going to the store to buy beer. However, she eventually became uncomfortable
and asked them to bring her back to the festival and they refused.
The Louisiana Supreme Court in State v. Logan , 213 La. 451, 34 So.2d 921 (La.1948), was faced with a similar situation and found that a kidnapping occurred when the victim was forcibly detained in a truck even though she voluntarily entered the vehicle initially. In the present case, both defendants forcibly kept the victim from exiting the car. The victim testified she tried to exit the car at one point but was pulled back into the car with her left foot caught between the frame and the door. At another time, the victim tried to run away on foot but was chased down and returned to the car.
State v. Porter , 615 So.2d 507, 514 (La.App. 3 Cir. 1993), writ granted , 629 So.2d 372 (La. 1993), and aff'd in part, rev'd in part , 93–1106 (La. 7/5/94), 639 So.2d 1137 (emphasis added). In affirming on appeal, the Louisiana Supreme Court noted that "[a]lthough she resisted and even tried to run away at one point, she was overtaken and forcibly restrained." Porter , 639 So.2d at 1139, 1144 (emphasis added).
Another case cited by the majority, involved seizure and carrying:
While S.A. was walking to the bus stop, defendant, who S.A. knew from her aunt's neighborhood, drove up beside her in a black Nissan Sentra. He said hello to her then exited his vehicle. Defendant offered to take S.A. to school, but she refused. Defendant then insisted on taking S.A. to school and pulled S.A. forcefully by her arm toward the car. S.A. entered the car , as did the defendant.
Defendant pulled away from the bus stop and proceeded in a direction away from S.A.'s school. When S.A. told defendant they were going in the wrong direction and asked to go back to her bus stop, the defendant told S.A. they were going to his apartment so that he could get some money. Defendant drove to the Mary Poppins Subdivision, parked in the back of the complex two doors from his apartment, exited the car and went into his apartment. When he returned to the car, he opened the passenger door, grabbed S.A. by the arm, and pulled her toward the apartment . At that point, S.A. tried unsuccessfully to escape.
State v. Tapps , 02–0547, p. 3 (La.App. 5 Cir. 10/29/02), 832 So.2d 995, 998, writ denied , 02–2921 (La. 4/21/03), 841 So.2d 789 (emphasis added).
Looking to the facts of each case cited by the majority indicates, unlike in this case, that simple kidnapping was an appropriate responsive verdict in each. Though the State failed to prove the additional element required to secure a second degree kidnapping conviction, the juries could nonetheless return a verdict of simple kidnapping because the facts proved established the essential elements of simple kidnapping. The facts of the case before us present no evidence that Defendant seized and carried any of the victims.
Instead of looking to the facts of the cases relied upon, the majority equates this case to those involving legislatively-provided responsive verdicts in La. C.Cr.P. Art. 814. Indeed, jurisprudence of this state holds that when a defendant fails to object to a legislatively-provided responsive verdict, he or she cannot then turn around on appeal and challenge the conviction on a claim of insufficient evidence when the evidence could have supported the higher charged offense. See State ex rel. Elaire v. Blackburn , 424 So.2d 246, 252 (La. 1982). However, this is not a case governed by La. C.Cr.P. Art. 814, and the majority cites to no case specifically holding that such reasoning extends to cases governed by La. C.Cr.P. Art. 815. In Elaire, the Louisiana Supreme Court distinguished "between those responsive verdicts which are lesser and included grades of the charged offense and those responsive verdicts which are not lesser and included offenses but are nevertheless included in La.C.Cr.P. Art. 814." Elaire , 424 So.2d at 248–49. In my view, there should be a distinction made between verdicts specifically authorized by the legislature (though not necessarily truly lesser included offenses) and those requiring an analysis under La. C.Cr.P. Art. 815. In the La. C.Cr.P. Art. 814 context, while jurisprudence holds that a defendant cannot benefit from a compromise verdict and challenge sufficiency on appeal without having objected, I am not of the opinion that such reasoning should extend to the La. C.Cr.P. Art. 815 context, where the legislature has not specifically authorized the verdict and where the evidence does not establish each element of the lesser crime. Thus, I believe the original panel correctly recognized the verdict as non-responsive and subject to error patent review without need for a contemporaneous objection at trial.
For the foregoing reasons, I am also not convinced by the State's argument that the result reached in Price "presents a troubling logical dissonance." Simple kidnapping can be, in some circumstances, responsive to second degree kidnapping—it is simply not responsive here given the facts of the case. That simple kidnapping is a legislatively-provided responsive verdict to aggravated kidnapping is also not convincing. The legislature may designate responsive verdicts as it sees fit. The legislature either inadvertently drafted second degree kidnapping out of La. C.Cr.P. Art. 814 or intentionally excluded responsive verdicts for second degree kidnapping. In any event, it is up to the legislature to address the issue if it wishes.