State v. Holmes
| Decision Date | 06 November 1972 |
| Docket Number | No. 52812,52812 |
| Citation | 269 So.2d 207,263 La. 685 |
| Parties | STATE of Louisiana v. Freddie HOLMES. |
| Court | Louisiana Supreme Court |
Fred A. Blanche, III, Baton Rouge, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Sargent Pitcher, Jr., Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.
Louise Korns, Asst. Dist. Atty., Parish of Orleans, for amicus curiae.
On the application of the defendant we granted writs in this case to consider the effect of Furman v. Georgia 1 upon Louisiana procedural law in a murder trial.
A bill of exceptions was reserved by defendant when the trial judge instructed a prospective juror that, since capital punishment can no longer be imposed in Louisiana, only nine of the twelve jurors need to concur to reach a verdict, and the jury would not be sequestered during the trial.
Sequestration of the jury is required by C.Cr.P. 791 'in capital cases.'
The size of the jury and the number that must concur to reach a verdict are governed by C.Cr.P. 782, whose source is Article 7, Section 41, Louisiana Constitution of 1921:
'. . . Cases, in which the punishment may be at hard labor, shall be tried by a jury of five, all of whom must concur to render a verdict; cases, in which the punishment is necessarily at hard labor, by a jury of twelve, nine of whom must concur to render a verdict; cases in which the punishment may be capital, by a jury of twelve, all of whom must concur to render a verdict.'
The word 'capital' in criminal law has to do with the death penalty. 2
Defendant observes that C.Cr.P. 878, 3 in view of the Furman case, might seem to require that we hold our murder statute (R.S. 14:30) unconstitutional, but argues that the better view would recognize that only the Imposition and Execution of a capital sentence has been reprobated, leaving intact the crimes and the procedural devices applicable to cases in which the death penalty was applicable before Furman.
The State simply argues that there are no more caital cases, and since the only punishment now available for the crime of murder is life imprisonment at hard labor, the constitutional and statutory provisions (nine out of twelve jury verdict, no sequestration) applicable to non-capital felony cases must now apply to what were formerly 'capital cases.'
The provisions of Article 7, Section 41, quoted above, were taken almost verbatim from the Louisiana Constitutions of 1898, Article 116, and 1913, Article 116. The less serious offenses were triable without juries; more serious offenses were triable with five man juries (unanimous verdict), twelve man juries with nine concurring, or twelve man juries with unanimous verdict. The severity of the offense was legislatively determined and depended upon the maximum penalty which could be imposed for the offense charged.
For at least three-fourths of a century, the legislature has made provisions for procedural matters in criminal cases which depend on the classification of crimes in the Louisiana Constitution. 4 If our legislature eliminated capital punishment, but remained silent with respect to procedural changes, we might be justified in adopting the reasoning of the State--that all statutory references to capital cases, capital offenses and capital punishment should be ignored. We might conclude that the legislature was aware of its laws on the subject, and chose, in effect, to repeal them tacitly.
However, it was not the legislature, but the United States Supreme Court that has held the Imposition and Execution of the death sentence, As now applicable in our State, to be violative of the United States Constitution. No presumption arises that any other provision of Louisiana law has been affected by the United States Supreme Court, except those having to do with the Imposition and Execution of death sentence. Nor, indeed, has the United States Supreme Court eliminated the possibility that the Louisiana legislature might enact statutes which could constitutionally impose the death sentence, when the sentence is mandatory and cannot be applied in a discriminatory manner.
Although the hiatus is obvious and the situation undesirable, we conclude that we should (at least until the legislative process has reorganized the criminal law and procedure in view of Furman) interpret Article 7, Section 41 of the Louisiana Constitution as referring to classes of crimes, and that those which the legislature has classified as capital offenses shall be tried by a jury of twelve, all of whom must concur to render a verdict.
Further, we adopt the same interpretation as to C.Cr.P. 791, and hold that murder is still classified as a 'capital case,' and that C.Cr.P. 791 requires the sequestration of the jury in capital cases.
For these reasons, Bill of Exceptions No. 1 has merit. Defendant's objection should have been sustained. A mistrial is ordered and the jury is dismissed. (C.Cr.P. 775(3)).
APPENDIX
California and Colorado have adopted the 'classification' theory. People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (1972); People v. District Court (Nixon and McElvray), Colo.1972, 500 P.2d 358; Contra: State v. Johnson, 1972, 61 N.J. 351, 294 A.2d 245; Ex Parte Contella, Tex.Cr.App.1972, 485 S.W.2d 910; Donaldson v. Sack, 265 So.2d 499 (Fla.1972).
Capital offenses (capital cases, capital crimes) in Louisiana are:
Various provisions made applicable to capital offenses by use of the word 'capital, ' or by reference to 'death,' in Louisiana statutory law, are as follows:
BARHAM, J., dissents with written reasons.
TATE, J., concurs with BARHAM, J.'s dissent and assigns additional reasons.
I dissent from the majority's holding in the instant case for all the reasons stated in my dissenting opinion in State v. Flood, No. 52783 on our docket, 263 La. 700, 269 So.2d 212, this day decided.
We are required here to determine the number of jurors whose concurrence is necessary to render a verdict in what was formerly a capital offense, and to determine whether the requirement for total sequestration of the jury during the trial for such an offense is still in effect.
All the specific legal requirements addressed to 'capital offenses', separate and apart from other felonies, were enacted solely because of the nature of the punishment prescribed for such offenses. The possibility of receiving a death sentence would make one on bail for a capital offense less likely to appear for trial. It was the total irrevocability of the death penalty which led our Legislature to require in such cases indictment by grand jury, strict sequestration of the...
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