State v. Davenport
| Decision Date | 07 May 2014 |
| Docket Number | No. 2013–KK–1859.,2013–KK–1859. |
| Citation | 147 So.3d 137 |
| Parties | STATE of Louisiana v. Morris DAVENPORT, Jr. |
| Court | Louisiana Supreme Court |
Department of Justice, State of Louisiana, James D. Caldwell, Attorney General, District Attorney's Office, Sabine Parish, Don M. Burkett, District Attorney, Anna L. Garcie, Assistant District Attorney, for Applicant.
Public Defender's Office, 11th Judicial District, Robert S. Noel, D. Scott Kendrick, Attorney at Law, David Scott Kendrick, Natchitoches, LA, for Respondent.
The res nova issue before us is whether a defendant having been tried once, may nevertheless be ordered to stand trial a second time when the trial judge in the first proceeding, acting without authority, grants a motion for acquittal in a jury trial, dismisses the jury and subsequently orders a mistrial. A decision whether to retry a defendant under these circumstances requires a careful analysis of the constitutional protection against double jeopardy, the authority of a Louisiana judge in a criminal jury trial, and the grounds for a valid mistrial. After review, we find the trial judge had no constitutional or statutory authority to grant the acquittal under Louisiana law, which distinguishes this case from the federal jurisprudence relied upon by the court of appeal to reverse. Finding the trial judge's verdict of acquittal was without legal authority or effect, we hold the mistrial was properly granted and retrial is not barred by double jeopardy.
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). For a conviction, the state was required to prove:
... a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances: ... (6) When the victim is prevented from resisting the act because the victim suffers from a physical or mental infirmity preventing such resistance.
A “mental infirmity” is further defined in the statute as “a person with an intelligence quotient of seventy or lower.” La. R.S. 14:42(C)(2).
A jury was selected on November 27, 2012, and the defendant's trial by jury began on November 28, 2012. After the presentation of the state's case in chief, out of the presence of the jury, defense counsel moved for an acquittal under the provisions of La.C.Cr.P. art. 778, which provide:
Defense counsel's bases for urging the motion were his contentions the state failed to prove a material element of the crime charged, that being the victim's impairment by having an intelligence quotient (I.Q.) score of seventy or less, and the general lack of competent evidence. The trial judge denied the motion and the trial continued with the defense presenting its case.
At the close of all the evidence, a recess was taken to give the attorneys an opportunity to formulate their closing arguments and to hold a charge conference on the court's proposed jury charge. At that time, the trial judge informed counsel he was reconsidering the defendant's earlier motion. After counsel for the state and the defendant presented additional arguments out of the jury's presence, the trial judge granted the defendant's motion, finding the state had not proved the victim's mental infirmity pursuant to the criminal statute. Over the state's objection, the trial judge ordered the defendant be acquitted and dismissed the jury.1
Several days later, on December 4, 2012, the trial judge held a hearing at which he acknowledged he had erred in granting the defendant's motion for acquittal. Over defense counsel's objection, the trial judge declared a mistrial pursuant to La.C.Cr.P. art. 775(5), finding it physically impossible to proceed with the trial in conformity with law since the jury had been released. See La.C.Cr.P. art. 775(5) ( ).
The defendant sought review of the trial court's judgment ordering a mistrial, arguing any retrial would violate the prohibitions against double jeopardy. Recognizing the issue as res nova and one on which Louisiana jurisprudence is silent, the court of appeal turned to federal jurisprudence. Relying primarily on three Supreme Court cases, Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962), Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978), and Evans v. Michigan, ––– U.S. ––––, 133 S.Ct. 1069, 185 L.Ed.2d 124 (2013), the court of appeal agreed with the defendant, finding an acquittal, even one based on an egregious legal error, nevertheless acts as a bar to the retrial of a criminal defendant. Defendant's writ application was granted and made peremptory. The trial court's ruling ordering a mistrial was reversed, vacated and set aside. State v. Davenport, 2013–39 (La.App. 3 Cir. 7/3/13); 116 So.3d 1038.
In reaching its conclusion, the court of appeal was persuaded by the following reasoning. In Fong Foo, the federal district court, although having the power to direct the jury to return verdicts of acquittal, granted a motion of acquittal on a ground not authorized by statute. The Supreme Court reasoned that when a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were “egregiously erroneous.” Id., 369 U.S. at 143, 82 S.Ct. at 672. In Sanabria, the federal district judge made erroneous evidentiary rulings, which led to an acquittal for insufficient evidence. The Supreme Court held the judgment of acquittal, however erroneous, barred further prosecution of any aspect of the criminal charge, as well as appellate review of the trial court's error. Id., 437 U.S. at 68–69, 98 S.Ct. at 2181. In Evans, the Supreme Court granted certiorari in a case originating in a Michigan state court. The Michigan trial court entered a directed verdict of acquittal after the state rested its case on the ground the state failed to provide sufficient evidence of a particular element of the offense. The Michigan appellate court reversed, finding the unproven “element” was not actually a required element at all, and rejecting Evans' argument that double jeopardy barred retrial. The Michigan Supreme Court affirmed. The Supreme Court reversed, holding retrial of the defendant was barred by the Double Jeopardy Clause. Id., 133 S.Ct. at 1081.
Evans provided a concise review of Supreme Court jurisprudence on improperly granted acquittals and the effect of double jeopardy. Starting with Fong Foo, the Supreme Court noted:
An acquittal is unreviewable whether a judge directs a jury to return a verdict of acquittal, e.g. Fong Foo, 369 U.S., at 143, 82 S.Ct. 671, or foregoes that formality by entering a judgment of acquittal herself. See Smith v. Massachusetts, 543 U.S. 462, 467–468, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005) (collecting cases). And an acquittal precludes retrial even if it is premised upon an erroneous decision to exclude evidence, Sanabria v. United States, 437 U.S. 54, 68–69, 78, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) ; a mistaken understanding of what evidence would suffice to sustain a conviction, Smith, 543 U.S., at 473, 125 S.Ct. 1129 ; or a “misconception of the statute” defining the requirements to convict, [ Arizona v.] Rumsey, 467 U.S., at 203, 211, 104 S.Ct. 2305[, 81 L.Ed.2d 164 (1984) ]; cf. Smalis v. Pennsylvania, 476 U.S. 140, 144–145, n. 7, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986). In all these circumstances, “the fact that the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles affects the accuracy of that determination, but it does not alter its essential character.” United States v. Scott, 437 U.S. 82, 98, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (internal quotation marks and citation omitted).
Evans, 133 S.Ct. at 1074. In other words, the Supreme Court has held an error in determining the underlying merits of an acquittal does not change the basic nature of the ruling as an acquittal. While acknowledging the trial court's ruling in Evans was wrong in its interpretation of the statutory offense, the Supreme Court found the ruling was nevertheless an acquittal since the ruling evaluated the state's evidence and determined the evidence was legally insufficient to sustain a conviction. Id., 133 S.Ct. at 1075–1076.
The court of appeal here noted the difference between the legal errors at issue in the federal jurisprudence, upon which it relied, and the error made by the trial judge. The court of appeal recognized the legal errors involved an erroneous interpretation of law regarding the sufficiency of the evidence in the federal jurisprudence. Here, the legal error involved the trial judge's authority to act. Nevertheless, because the trial judge based his judgment of acquittal on his assessment of the sufficiency of the evidence, and “despite the absence of a legal foundation,” the court of appeal held “once entered, the judgment of acquittal was final.” Davenport, 2013–39, p. 11; 116 So.3d at 1045. Consequently, the court of appeal found the trial court's subsequent ruling in ordering a mistrial was error, requiring reversal. Id.
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