State v. Davenport

• Decision Date: 03 July 2013
• Docket Number: No. 13–39.,13–39.
• Parties: STATE of Louisiana v. Morris DAVENPORT, Jr.
• Court: Court of Appeal of Louisiana — District of US

116 So.3d 1038

STATE of Louisiana

v.Morris DAVENPORT, Jr.

No. 13–39.

Court of Appeal of Louisiana, Third Circuit.

July 3, 2013.

D. Scott Kendrick, Natchitoches, LA, for Applicant.

Anna L. Garcie, Assistant District Attorney, Many, LA, for Respondent.

Court composed of JIMMIE C. PETERS, BILLY H. EZELL, J. DAVID PAINTER, Judges.

EZELL, Judge.

[3 Cir. 1]STATEMENT OF THE CASE

The Defendant, Morris Davenport, Jr., was charged by bill of indictment with one count of aggravated rape, in violation of La.R.S. 14:42(A)(6). On November 27 and 28, 2012, the Defendant was tried before a jury. After both the State and defense rested, the Defendant requested a motion for judgment of acquittal under La.Code Crim.P. art. 778. The Defendant argued that the State failed to prove a material element of the crime; that the victim was impaired by having an intelligence quotient (I.Q.) score of less than seventy. Before the jury was charged and while the jury was still present, the trial judge granted the Defendant's motion, finding that the State had not presented sufficient evidence to prove the victim was impaired. The trial judge ordered that the Defendant be acquitted and dismissed the jury.

On December 4, 2012, five days after the trial concluded, the trial court held a hearing during which it realized that a motion for acquittal, under La.Code Crim.P. art. 778, only applies in bench trials and not jury trials, as was the case in the instant matter. Therefore, it subsequently corrected the error by ordering a mistrial.

The Defendant filed a notice of intent to seek a writ of supervisory review and certiorari on December 6, 2012. The trial judge set a return date of January 15, 2013, and stayed all proceedings pending review by this court.

The Defendant filed an application for supervisory review with this court on January 11, 2013. The Defendant is now before this court asserting an error in the trial court's judgment ordering a mistrial, because it was a violation of his United States Fifth Amendment Constitutional right against double jeopardy. He requests this court reverse the trial court's judgment ordering a mistrial.

We find the Defendant's writ application should be granted.

[3 Cir. 2]LAW AND DISCUSSION

The issue raised by the Defendant in the instant case pertains to his constitutional right against double jeopardy. The Defendant argues that, because the trial court entered a judgment of acquittal, any further prosecution by the State in relation to the same charge of aggravated rape would violate this right. The State, however, argues that because the trial judge was without the power to grant the motion for judgment of acquittal initially, the acquittal ruling was null and void ab initio, and the judgment ordering a mistrial is valid.

Authority to grant a motion for acquittal

In 1975, the Louisiana Constitution was amended. This amendment revised La.Code Crim.P. art. 778 by eliminating a trial judge's authority in jury trials to grant a motion for judgment of acquittal and reserving such authority to judges in bench trials. See State v. Jackson, 344 So.2d 961 (La.1977).

Thus, per the 1975 amendment, a trial judge in a bench trial is allowed to grant a motion for judgment of acquittal in two instances. The trial judge can elect to grant the motion under La.Code Crim.P. art. 778 or La.Code Crim.P. art. 821. The first governs motions made after the close of the prosecution's case, and the latter governs motions for post-verdict judgment of acquittal. In the instant case, the defense twice moved for a motion for judgment of acquittal, after the close of the prosecution's case and after the defense rested. The trial judge denied the first motion but granted the second before charging the jury. However, because the Defendant was tried by jury, the trial judge did not have the authority to grant a judgment of acquittal under these circumstances.

[3 Cir. 3]The instant matter addresses a res nova issue regarding double jeopardy in the context of a judgment of acquittal that results from a procedural error by a trial judge who does not have the power to grant such under the amended version of La.Code Crim.P. art. 778. The complexities of this issue arise from a code article distinct from the federal rules of evidence and specific to Louisiana criminal procedure. Louisiana jurisprudence is silent on this issue.

While several Louisiana cases discuss double jeopardy in the context of acquittal, these cases address the issue in the context of a bench trial, where the judge has the authority to enter the judgment. See State v. Hurst, 367 So.2d 1180 (La.1979); State v. Reed, 315 So.2d 703 (La.1975). Louisiana jurisprudence has yet to address the action of a trial judge who enters an order for judgment of acquittal in a jury trial where it is without the requisite authority.

The United States Supreme Court and the federal appellate courts have, however,addressed the issue. The federal courts have found that an acquittal exists not only where the particular action is labeled an acquittal but also when the substance of the ruling concerns the merits of the guilt or innocence of the defendant. “Thus[,] an ‘acquittal’ includes ‘a ruling by the court that the evidence is insufficient to convict, a factual finding [that] necessarily establish[es] the criminal defendant's lack of criminal culpability, and any other rulin[g] which relate[s] to the ultimate question of guilt or innocence.’ ” Evans v. Michigan, ––– U.S. ––––, 133 S.Ct. 1069, 1075, 185 L.Ed.2d 124 (2013) (quoting United States v. Scott, 437 U.S. 82, 98, 98 S.Ct. 2187, 57 L.Ed.2d 65, (1978) (first alteration ours)).

In Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962), the United States Supreme Court considered the validity of a judgment of acquittal within the [3 Cir. 4]context of double jeopardy when a judge, although statutorily given the authority to grant a judgment of acquittal, did so on a basis not enumerated under the statute. In Fong Foo, the trial judge directed the jury to return verdicts of acquittal as to the defendants and subsequently entered a formal judgment of acquittal. However, the trial judge relied on an incorrect basis for granting the judgment of acquittal—the supposed improper conduct by the prosecuting Assistant United States Attorney and the supposed lack of credibility in a prosecution witness's testimony.

The government filed a writ of mandamus, which was granted by the United States First Circuit Court of Appeal. The First Circuit vacated the trial court's judgment of acquittal and reassigned the case for trial. Upon writ of certiorari to the Supreme Court, a majority court found that the trial terminated upon the entering of the judgment of acquittal, which was final and could not be reviewed without subjecting the defendants to double jeopardy—despite the fact that the acquittal was based on “an egregiously erroneous foundation.” Id. at 672. The Supreme Court accepted the appellate court's holding that the district court had erred, but nevertheless found the Double Jeopardy Clause was violated when the court of appeal set aside the judgment of acquittal and directed the defendants be tried again for the same offense. Thus, when a defendant has been acquitted at trial, he may not be tried on the same offense, even if the legal rulings underlying the acquittal are erroneous.

A dissenting Justice Clark found that the trial judge's lack of authority to enter the judgment of acquittal rendered the judgment null. His opinion, however, weighed heavily on the timing of the judgment of acquittal, which was entered before the prosecution had the opportunity to conclude presentation of its case and frustrated the government's duty to prosecute those who violate the law. Justice Clark concluded [3 Cir. 5]that the mere use of the word ‘acquittal’ should not operate as a “magic open sesame,” freeing persons of criminal charges. Id. at 144, 673 (Clark, J., dissenting).

The Supreme Court revisited this issue in Sanabria v. U.S., 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978), a procedurally similar case with unusual facts. The defendants were charged with illegally engaging in horse and numbers betting. The trial court determined that the specific crime the government was prosecuting did not support the numbers betting charge and excluded all numbers betting evidence but allowed the horse betting theory to proceed. One particular defendant, who was only charged with numbers betting, then moved for a judgment of acquittal. The court granted the judgment of acquittalas to that defendant, finding insufficient evidence of his involvement in the horse betting. The case then went to trial against the remaining ten defendants on the theory that they were engaged in horse betting.

The trial court denied the government's motion for reconsideration from the order excluding the evidence and the order entering a judgment of acquittal. The government appealed. The United States First Circuit held that the trial judge's action in excluding the evidence served to “dismiss” the numbers theory charge. Upon that basis, characterizing the trial court's action of excluding the evidence as a dismissal of that charge, the First Circuit found that the trial court erred in subsequently acquitting the defendant. The court then vacated the judgment of acquittal as to that charge, considering it erroneous in light of the previous dismissal, and remanded for the government to try the defendant for any violation based on the numbers betting activities under the federal statute. Id.

Upon review, the United States Supreme Court considered the constitutionality of the First Circuit's remand for a new trial within the context of double jeopardy. [3 Cir. 6]The court explained, “the most fundamental rule in the history of double jeopardy jurisprudence” is that a verdict of acquittal cannot be reviewed “without putting [the defendant] twice in...