State v. Bay

• Decision Date: 03 October 1990
• Docket Number: No. CR89-1228,CR89-1228
• Citation: 567 So.2d 798
• Parties: STATE of Louisiana v. Clarion BAY, Jr. 567 So.2d 798
• Court: Court of Appeal of Louisiana — District of US

Page 798

567 So.2d 798

STATE of Louisiana v. Clarion BAY, Jr.

No. CR89-1228.

567 So.2d 798

Court of Appeal of Louisiana, Third Circuit.

Oct. 3, 1990.

Joseph D. Toups, Jr., Mansfield, Herbert B. Larson, Jr., New Orleans, for defendant-appellant.

Don Burkett, Dist. Atty., Many, for plaintiff-appellee.

Before DOMENGEAUX, C.J., and FORET and KNOLL, JJ.

DOMENGEAUX, Chief Judge.

Defendant, Clarion Bay, Jr., was convicted by a unanimous twelve member jury of first degree murder, a violation of La.R.S. 14:30 and was sentenced to death.

He appealed his conviction and sentence directly to the Louisiana Supreme Court. Although the court found the evidence insufficient to support a first degree murder conviction, it did find the State proved every element of the lesser and included offense of second degree murder beyond a reasonable doubt. Consequently, the court set aside defendant's conviction and sentence and remanded the case, ordering the trial court to enter a judgment of guilty of second degree murder and to sentence defendant to life imprisonment at hard labor. State v. Bay, 529 So.2d 845 (La.1988), rehearing denied September 8, 1989. On January 23, 1989, the district court complied with the Supreme Court's order.

Defendant now appeals his conviction based upon three assignments of error, two of which he raised, but did not brief, in the Supreme Court.

ASSIGNMENTS OF ERROR NOS. 1, 2 and 3:

Defendant argues the trial judge erred in failing to grant his challenges for cause against two prospective jurors and in improperly charging the jury regarding the sentencing phase in capital crimes. Defendant raised these assignments of error before the Supreme Court, but he failed to brief them. The Supreme Court considered them waived. Defendant reurges these assignments in this appeal and additionally argues the Supreme Court erred in not considering these assignments in his original appeal. We find an appeal to this court on these issues is improper; therefore, we need not address these assignments of error.

The Louisiana Constitution of 1974 guarantees the defendant's right to an appeal. La. Const. art. I, Sec. 19 provides:

No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.

See also State v. Simmons, 390 So.2d 504 (La.1980). However, this defendant has already exercised this right.

The Supreme Court found the record in this case supported a conviction of the lesser and included offense of second degree murder, and it ordered the trial court to enter a judgment for that offense. The authority for this procedure is found in State v. Byrd, 385 So.2d 248 (La.1980), where the court stated the following:

However, when it is clear from the verdict that the trial judge or jury necessarily found the elements of a lesser and included offense had been proved beyond a reasonable doubt, and the state, constrained by the double jeopardy clause, cannot seek anew a conviction on the greater offense, a remand for a new trial would serve no useful purpose. See Joseph, Work of the Louisiana Appellate Court for the 1976-77 Term-Criminal...