State v. Blackwell, 53405

• Citation: 298 So.2d 798
• Decision Date: 29 October 1973
• Docket Number: No. 53405,53405
• Parties: STATE of Louisiana v. Felton BLACKWELL.
• Court: Supreme Court of Louisiana

Page 798

298 So.2d 798 STATE of Louisiana
v.
Felton BLACKWELL. No. 53405. Supreme Court of Louisiana. Oct. 29, 1973.
On Rehearing June 10, 1974.
Rehearing Denied Aug. 30, 1974.

Robert L. Cole, Lafayette, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, LeRoy A. Hartley, Asst. Attys. Gen., J. Nathan Stansbury, Dist. Atty., Byron P. Legendre, Ronald E. Dauterive, Asst. Dist. Attys., for plaintiff-appellee.

Robert Glass, Jack E. Yelverton, Executive Director, La. Dist. Attys. Assn., for amicus curiae.

BARHAM, Justice.

Defendant was tried and convicted of armed robbery in violation of R.S. 14:64. He was sentenced to thirty years in the state penitentiary without benefit of probation, parole or suspension of sentence. In this appeal he relies on two bills. We consider only Bill of Exceptions No. 2 since it presents reversible error.

That bill was reserved when the trial judge refused to instruct the jury on the penalty provision of the armed robbery

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statute. Defense counsel had requested that the court instruct the jury as follows:

'Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.'

The court declined to give the requested charge on the basis of State v. Harris, 258 La. 720, 247 So.2d 847 (1971), and noted that it was the province of the court and not the jurors to determine the punishment, in the event they should find the defendant guilty. In Harris, with Mr. Justice Sanders as its organ, this court said:

'The determination of the appropriate penalty and the imposition of sentence in non-capital cases are functions of the judge. The jury is concerned only with guilt. * * *

'We have held that sentence regulations in non-capital cases, such as those relating to mandatory terms, probation, or parole, are inappropriate subjects for the judge's charge to the jury. These matters are foreign to the jury's function of guilt determination and, consequently, form no part of 'the law applicable to the case.' See State v. Andrus, 250 La. 765, 199 So.2d 867; State v. Green, 244 La. 80, 150 So.2d 571.

'* * * sentence regulations form no part of the applicable law to be argued by counsel before the jury. To allow argument of these matters would inject irrelevant considerations into the jury's deliberations as to guilt.'

As pointed out by Justice Dixon in his dissent there, this court prior to Harris, had upheld the State's right to inform the jury about pardons and paroles available to the defendant in the event of his conviction in State v. Burks, 196 La. 374, 199 So. 220. Mr. Justice Dixon further stated:

'A large part of the value of the jury system is that a jury might refuse to enforce an oppressive law, even though it be proved that the defendant violated its provisions. The penalty is part of the law. The penalty alone might make a law oppressive.

'The jury ought to know.'

The writer of this opinion also dissented in Harris, agreeing with Mr. Justice Dixon's position that the penalty is an essential part of the law. That dissent further noted that penalties are the subject of discussion in the jury room. Jurors gather erroneous information as to penalty from the news media and in the courtroom as they observe other criminal proceedings before being empanelled on a particular case, juries attempt to return verdicts which accord with their understanding or misunderstanding of the penalty which may be imposed after a consideration of whether they wish to act with mercy or with harshness; therefore, jurors should be accurately informed of a necessary part of a crime, i.e., the penalty it carries.

Article 19, Section 9 of Louisiana's Constitution provides:

'* * * The jury in all criminal cases shall be the judges of the law and of the facts on the question of guilt or innocence, having been charged as to the law applicable to the case by the presiding judge.'

A crime is defined as an offense against the State in violation of penal law. It is the penalty or penalties which make a law criminal. It cannot be said that the penalty is not an essential part of the law under which one is charged with a crime. Code of Criminal Procedure Article 774 defining the scope of the argument includes argument on 'the law applicable to the case'. The constitutional requirement that the judge charge the jury as to the law is amplified by Code of Criminal Procedure Articles 802--808. They specify particular matters which must be charged; they prohibit the judge from charging or commenting upon the facts. There is no constitutional

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prohibition against informing a jury of the penalty, or against the jury's imposing the sentence. See McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971).

On our August 20, 1973 opinion day, we handed down two opinions concerned with voir dire examination on the sentence to be imposed in the crime of armed robbery. In State v. Smith et al., 283 So.2d 470 (1973), the majority allowed the State to challenge for cause two prospective jurors who, after being informed on voir dire examination by the State of the severity of the penalty in armed robbery, i.e., up to 99 years without parole, probation or suspension, stated they could not be impartial because that penalty was too harsh. The author of that opinion also authored State v. Harris, where he stated that the jury is only concerned with guilt; sentence regulations form no part of the law to be argued before the jury; to allow such arguments is to inject irrelevant considerations into the jury's deliberations as to guilt. If the State can exclude jurors on the basis of penalty, as it informs the entire jury of the penalty, how could we, in Harris, have said this was an irrelevant issue for the jury's consideration?

On the same docket with Smith, we handed down State v. Drumgo and Curtis, 283 So.2d 463 (1973). During voir dire the State had read the armed robbery statute excluding the penalty provision and had asked a juror if he had any objection to the statute. Objection was made that since the penalty provision was not also read, the question to the juror as to his objections to the law, was improper. A unanimous court stated, with three concurrences, 'Thus, it is not Mandatory that the jury be informed of the penalty provision of a criminal statute.' (Emphasis was supplied in that opinion)

The Harris case and the Smith case pose irreconcilable holdings in regard to whether the penalty is a part of the law to be given to the jury. The dictum in Drumgo and Curtis, which makes the question of permitting the jury to be informed of the sentence discretionary with the trial judge, is not acceptable. This question is too profound, and its effect too important, for us to formulate a discretionary rule allowing one jurisdiction to handle the matter one way, and another jurisdiction contrarily. Uniformity is necessary because of the drastic differences of result which will occur under a discretionary rule.

In the case at bar, after an hour of deliberation, the jury returned to the courtroom to request additional instruction on the responsive verdict of 'simple robbery'. The court replied as follows:

'Title 14, Section 65 defines Simple Robbery as follows: Simple Robbery is a theft of anything of value from the person of another or which is in the immediate control of another by the use of force or intimidation but not armed with a dangerous weapon. Armed robbery is armed with a dangerous weapon. That's the difference. You all can go back and deliberate, gentlemen.'

Some thirty minutes later the jury returned a verdict of guilty of armed robbery. The request indicates that the jury at least considered finding the defendant guilty of the lesser offense of simple robbery. Although the only difference in the elements of armed robbery and simple robbery is the use of a dangerous weapon, the effect of conviction for armed robbery and simple robbery is vastly different with regard to penalty. Simple robbery provides for imprisonment, with or without hard labor, for not more than five years. Armed robbery required imprisonment at hard labor For not less than five and not more than ninety-nine years, Without benefit of parole, probation or suspension of sentence. In neither of its charges...