State ex rel. Elaire v. Blackburn

• Decision Date: 29 November 1982
• Docket Number: No. 81-KH-2629,81-KH-2629
• Parties: STATE ex rel. Alex ELAIRE v. Frank C. BLACKBURN, Warden.
• Court: Louisiana Supreme Court

Page 246

424 So.2d 246

STATE ex rel. Alex ELAIRE v. Frank C. BLACKBURN, Warden.

No. 81-KH-2629.

Supreme Court of Louisiana.

Nov. 29, 1982.

Rehearing Denied Dec. 17, 1982.

Writ Denied Feb. 4, 1983.

Paul B. Deal, New Orleans, for relator.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Eddie Knoll, Dist. Atty., Cliffe LaBorde, III, Asst. Dist. Atty., for respondent.

LEMMON, Justice.

The principal issue in this matter is whether relator was validly convicted of attempted second degree murder under the pertinent statutes which at the time of the offense defined second degree murder only as an unintentional killing committed in the course of certain enumerated felonies. ¹ Because the trial court's denial of relator's postconviction application was contrary to our decision in State v. Booker, 385 So.2d 1186 (La.1980), and because some members of the court wished to reconsider that sharply divided decision, we granted certiorari. 411 So.2d 46.

I.

In the course of an early morning argument, relator shot the victim in the throat, because he believed that the victim had been instrumental in sending his brother to the penitentiary. Relator was tried on an indictment charging attempted first degree murder. The trial judge instructed the jury as to the essential elements of attempted first degree murder. Although he named the lesser offenses which were responsive verdicts listed in La.C.Cr.P. Art. 814, subd. A(2), he did not state the essential elements of the lesser offenses. He further stated the penalty for attempting an offense punishable by death or by life imprisonment, but he did not specify the penalty for attempted first degree murder or for any of the lesser offenses. Defense counsel did not request any special instructions on responsive verdicts and did not object to the instructions or to the responsive verdicts given by the trial judge. The jury returned a statutorily responsive verdict of attempted second degree murder.

When relator's appeal was not timely, the trial court summarily denied a motion for an out-of-time appeal. This court ordered an evidentiary hearing to determine whether relator had waived his right to appeal, after which the motion was again denied.

Relator then filed the present application for postconviction relief, in which he contended that the evidence was insufficient to support the conviction. Because this due process contention is one of constitutional dimension, it is properly reviewable on a postconviction application. La.C.Cr.P. Art. 930.3; State ex rel Womack v. Blackburn, 393 So.2d 1216 (La.1981). After the trial court's denial, we granted the application.

II.

Although relator bases his complaint on insufficiency of evidence to support a second degree murder conviction, the problem occurred because the trial court erroneously instructed the jury that attempted second degree murder was a proper responsive verdict under the existing statutes and the evidence presented at trial. We ultimately decline to grant relator relief because he failed to object to the instructions concerning responsive verdicts, but we will discuss the Louisiana system of responsive verdicts and the recent decisions in this area of the law in an attempt to fit this decision into the emerging patterns.

A system of responsive verdicts involves benefits to both the prosecution and the defense. On the one hand, the system may benefit the prosecution by providing an alternative to acquittal when the evidence does not establish an essential element of the charged offense; on the other hand, the system may benefit the defense when the jury would prefer a choice between the drastic extremes of guilty of the charged offense and not guilty. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Moreover, the "third option" insures the accused the full benefit of the reasonable doubt standard. Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973). ²

In Louisiana the accused is statutorily entitled to have the trial court instruct the jury as to the law on the charged offense and on any responsive offenses. La.C.Cr.P. Art. 803, 814, 815. ³ Therefore, when the accused requests and is refused an instruction on a lesser and included offense, or when the accused timely objects to the court's failure to give a responsive offense instruction to which he is statutorily entitled, the conviction may be reversed. See State v. Dufore, 424 So.2d 256 (La.1982), decided this date.

It is important to distinguish 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. ⁴ Lesser and included grades of the charged offense are those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged. State v. Cooley, 260 La. 768, 257 So.2d 400 (1972). Thus, the evidence which would support a conviction of the charged offense would necessarily support a conviction of the lesser and included offense. However, in cases of the legislatively provided responsive verdicts which are not truly lesser and included grades of the charged offense, evidence which would support a conviction of the greater offense would not necessarily support a conviction of the legislatively responsive offense. ⁵ In such cases, the evidence may be insufficient to establish an essential element of the lesser crime which is not an essential element of the greater crime.

In State v. Peterson, 290 So.2d 307 (La.1974), the defendant was charged with murder, and the jury returned a responsive verdict of manslaughter. Defendant argued that the evidence did not support the verdict because there was no proof of "sudden passion" or "heat of blood". La.R.S. 14:31. The court held that passion is not an essential element of the lesser offense of manslaughter, but rather is a mitigating factor, in the nature of a defense to the crime of murder, which need not be proved by the prosecution. However, the court in dicta stated that when the evidence is sufficient to support a conviction of the greater offense charged, the reviewing court need not determine whether the evidence supports the responsive verdict returned by the jury. Stated otherwise, the jury may return any legislatively provided responsive verdict, whether or not the evidence supports that verdict, as long as the evidence was sufficient to support a conviction of the charged offense. ⁶

In State v. Dauzat, cited in footnote 5, this court, in the context of an attempted murder charge and an aggravated battery responsive verdict, restricted the Cooley and Peterson analysis to those cases in which the responsive verdict returned by the jury was truly a lesser and included grade of the charged offense. ⁷ Dauzat fired at and missed the victim, but the shot struck the victim's automobile. On appeal from a conviction of the legislatively responsive offense of aggravated battery, this court reversed and remanded for a new trial, because the evidence did not support a finding of the use of force or violence upon the person of the victim, although the evidence would have supported a conviction of attempted murder.

While this court did not expressly rule on the question, the decision strongly implies that the trial judge erred in giving an instruction which included a responsive verdict that could not be supported by the evidence presented during the trial. The trial judge in the Dauzat case undoubtedly thought that he was required to instruct the jury on a responsive verdict included in La.C.Cr.P. Art. 814, whether or not the evidence supported a verdict. See State v. Thibodeaux, 380 So.2d 59 (La.1980).

Act 763 of 1982, among other things, added Section C to Article 814. The article now accords discretion to the trial judge, on motion of either side, to refuse to instruct the jury on a responsive verdict included in Article 814, as follows:

"Upon motion of the state or the defense, the court may, in its discretion, exclude a responsive verdict listed in Subarticle A if after all the evidence has been submitted there is no evidence to establish that responsive verdict." La.C.Cr.P. Art. 814 C. (Emphasis added.)

Thus, under the present law, a trial judge can now refuse to instruct the jury on a responsive verdict, even though the offense is listed in Article 814, if the court determines that there is "no evidence" to support such a verdict. ⁸

III.

We now turn to a review of the Booker decision, relied on by relator. At the time of this crime, the only definition of second degree murder was a killing while the offender was engaged in the perpetration or attempted perpetration of a felony enumerated in the statute. Since no evidence whatsoever was introduced to establish the commission of any felony enumerated in the statute, relator contends that an essential element of the crime (the perpetration or attempted perpetration of an enumerated felony) was not proved. Citing Booker, relator argues that he must be discharged. ⁹ See United States v. Burks, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1978).

Booker was tried for attempted first degree murder under the same statutory scheme as was in effect in this case. Because the jury convicted Booker of attempted second degree murder, the issue presented by Booker's direct appeal was virtually the same as the issue in this postconviction proceeding.

In Booker, the court in a four-way split decision reversed the conviction and ordered a new trial. Justice Dennis' plurality opinion (joined by Justice Calogero) reasoned that the indictment did not give defendant sufficient notice of the essential elements of the offense for which he was eventually convicted. ¹⁰ This author's concurring opinion (joined by Chief Justice Dixon) reasoned that second degree murder at the time was an unintentional...