State ex rel. Tyler v. Phelps

• Decision Date: 13 January 1978
• Docket Number: No. 61215,61215
• Citation: 353 So.2d 1050
• Parties: STATE of Louisiana ex rel. Gary TYLER v. C. Paul PHELPS, Director, Department of Corrections.
• Court: Louisiana Supreme Court

Page 1050

353 So.2d 1050

STATE of Louisiana ex rel. Gary TYLER v. C. Paul PHELPS, Director, Department of Corrections.

No. 61215.

Supreme Court of Louisiana.

Jan. 13, 1978.

In re: Gary Tyler applying for writs of certiorari, prohibition, mandamus and habeas corpus. Parish of St. Charles.

Writ denied.

CALOGERO, J., is of the opinion the writ should be granted, and assigns reasons.

CALOGERO, J., dissenting from denial of writ of habeas corpus.

When this Court reviewed defendant Tyler's conviction on appeal, we considered the possible error in the jury charge concerning presumptions. I expressed my view in a concurring opinion that I was inclined to agree with defendant that the jury charge he complained of was erroneous, but I joined the majority in affirming the conviction on appeal because of our long standing contemporaneous objection rule. 342 So.2d 574, 589 (La.1977). Defense counsel had not objected to the charge, a failure which denied the trial judge an opportunity to correct it. There was no constitutional issue involved on this point on appeal.

In the application for writ of habeas corpus now before us, defendant Tyler argues that federal and state constitutional due process was violated because of that same fundamentally unfair jury charge in contravention of the hallmark presumption of innocence. Considering this constitutional issue for the first time in this case, and noting that constitutional infirmities complained of on habeas application are reviewable without the prerequisite of a contemporaneous objection, I would find the application meritorious and grant the writ.

As I noted in my concurring opinion, because defendant was only sixteen years old at the time of the charged crime and therefore subject to being prosecuted in the district court rather than, more appropriately, second degree murder. The first degree murder charge required the state, in order to gain a conviction under the circumstances of the case, to prove beyond a reasonable doubt that Tyler had the specific intent to kill or to inflict great bodily harm upon more than one person, although only one shot had been fired from a fully loaded pistol. In order to attempt to meet its burden, the state repeatedly emphasized to the jury and successfully requested a special jury instruction that a person is presumed to intend the natural and probable consequences of his act.

Thus the jury which must presume innocence at the outset and throughout the proceedings was...