State v. Marse
| Decision Date | 15 December 1978 |
| Docket Number | No. 62193,62193 |
| Citation | 365 So.2d 1319 |
| Parties | STATE of Louisiana v. Willie Joseph MARSE, Jr. |
| Court | Louisiana Supreme Court |
Mary Coffman, Student Practitioner, William J. O'Hara, III, Supervising Atty., Loyola Law School Clinic, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., P. Michael Cullen, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
If one reasonable view of the evidence in a first degree murder prosecution would support a finding of negligent homicide by the jury, does the statutory exclusion of "guilty of negligent homicide" from the list of responsive verdicts violate the defendant's constitutional rights to a fair trial by jury? Does the trial judge's refusal to instruct the jury on negligent homicide in such a case violate defendant's statutory right to a wholly correct and pertinent special charge? We conclude that negligent homicide constitutionally may be excluded by statute as a responsive verdict to first degree murder. Under the circumstances stated above, the trial judge should give the requested special charge on negligent homicide, but under the facts of the instant case the error was not reversible.
Defendant, Willie Marse, was tried upon an indictment of first degree murder of a police officer and convicted by a twelve person jury of the lesser included offense of manslaughter, La.R.S. 14:31. After being sentenced to twenty-one years imprisonment at hard labor, Marse appealed arguing three assignments of error relating to the trial judge's omissions in failing to either instruct the jury on negligent homicide or to include it in the list of responsive verdicts given the jury. Eight other assignments were not argued and are pretermitted.
About noon on July 12, 1977, after having a number of beers, defendant went to the Westwego home of his estranged girlfriend Ola Mayeux. Mayeux was just returning from the grocery store when defendant arrived. She dropped her groceries in fright, ran into the house and locked the door. Defendant picked up her groceries and took them to his house in Bridge City. Mayeux reported the incident to the Westwego Police.
Because Marse lived outside Westwego police jurisdiction, the officers requested that Jefferson Parish Sheriff's deputies meet them at the defendant's house. At first, when the Westwego officers questioned defendant, he simply refused to discuss the matter with them; but when a Jefferson Parish deputy arrived, defendant retreated into the building, warning that he was going to get a gun and shoot them. The deputy summoned his supervisor, Sergeant Merlin Brune. When he arrived Brune and the other officers entreated defendant through the closed door to cooperate with them. Marse again threatened to shoot if they did not leave the premises. Brune armed himself with a shotgun and resumed his station outside defendant's front door, where the solicitation of defendant continued for several minutes.
One account of the events immediately surrounding the fatal shooting was provided by police officers and partially corroborated by a lay witness. The officers testified as follows: As four policemen clustered about defendant's door, he cracked it open an inch or two, and one of the officers, seeing that defendant was armed with a rifle, lunged at the door in an effort to disarm him. However, the patrolman's fist crashed through a panel of the door as defendant slammed it shut. When the officer withdrew his hand from the hole, it was followed by the barrel of Marse's rifle. Brune commanded the defendant to drop the weapon. The barrel fanned the air momentarily, several shots rang out, and Merlin Brune was fatally wounded by one of the bullets. The officers returned defendant's fire without harming him. Marse finally surrendered without further bloodshed on either side.
In giving his version, defendant testified as follows: After the police refused his request that they leave, he warned them that he would shoot if they broke into his home. When the officer's fist came through the door, he was several feet away. It sounded like a shotgun blast. In his fright, he moved to the door and fired through the hole. He denied having taken aim: Defendant claimed that he was not even aware that Brune had been shot until he surrendered himself an hour after the incident. Marse's attorney testified that when defendant consulted him after the shooting and reported an exchange of gunfire with police officers he claimed that no one was injured.
Two of defendant's neighbors testified for the defense that from their different vantage points some distance away, they did not see defendant open the door before the officer broke into it and the shots erupted. Neither witness could tell who had fired the first shot.
On rebuttal, the State offered evidence that a month before the crime a disturbance with Ola Mayeux resulted in defendant's arrest. On that occasion he resisted arrest, voiced his hatred for police officers and repeatedly expressed a determination to kill them. On the day before the crime, an acquaintance testified, defendant declared that "he was gonna have to kill some of them (policemen) to make them leave him alone."
The responsive verdicts to first degree murder are:
"Not guilty." La.C.Cr.P. art. 814.
Contending that "guilty of negligent homicide" was logically and constitutionally, if not statutorily, responsive to the charge, defense counsel timely requested several special instructions to the jury on the law of negligent homicide. First, he asked that the court, when charging the jury as to the responsive verdicts in the case, specifically advise that "negligent homicide is not a responsive verdict." That charge was accepted by the court and given. Next, he requested the following instruction on criminal negligence, taken directly from La.R.S. 14:12:
"Criminal negligence under Louisiana law exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances."
Finally, he asked that the jury be charged as follows:
The trial judge's refusal of the latter two charges is the basis of defendant's second argument on appeal. Defense counsel asserts in brief that the judge explained in chambers that his ruling was grounded upon Article 814's exclusion of negligent homicide as a responsive verdict. Thereafter, defense counsel moved to quash the indictment on the ground that Article 814 did not include guilty of negligent homicide among the responsive verdicts. The motion was denied and defendant contends in his first appellate argument that the ruling was erroneous.
The wisdom of the Louisiana responsive verdict system both as to those verdicts included and those excluded has been questioned. See, Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). However, this Court has repeatedly upheld Article 814 against constitutional attacks. See, State v. Qualls, 353 So.2d 978 (La.1977); State v. Cook, 345 So.2d 29 (La.1977); State v. Palmer, 344 So.2d 964 (La.1977). In cases not involving the death penalty, the element of capriciousness injected into the proceedings by the responsive verdict system does not offend the constitutional safeguards. See, State v. Palmer, supra.
In this case, defendant was charged by an offense punishable under a valid statute. See, La.C.Cr.P. art. 532; Compare, State v. Legendre, 362 So.2d 570 (La.1978). By his motion to quash he did not challenge the validity of the charge, as constituted, but rather complained that the unavailability of a specific verdict in response to that charge prejudiced his defense. However, such a contention invites the trial court to pass upon the merits of the state's case, a matter not properly raised by motion to quash. Cf. State v. Atkins, 360 So.2d 1341 (La.1978). Defendant's ultimate protection is that if the state fails to prove the elements of the offense charged or of those offenses for which responsive verdicts are prescribed by La.C.Cr.P. art. 814, he is entitled to an acquittal.
The motion to quash was properly denied.
By two of his assignments of error defendant contends that the trial judge erred in refusing his special requested instructions relative to the law of negligent homicide and to the jury's duty to acquit if it found that defendant had committed that crime. He asserts that the trial judge was required to give the instructions because they were wholly correct and pertinent.
La.C.Cr.P. art. 807, in relevant part, provides:
See also, State v. Atkins, supra.
The State argues that the law of negligent homicide was not pertinent because that offense was not included among the applicable responsive verdicts.
Although we have previously considered the issue,...
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State v. Brown
...to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. See State v. Marse , 365 So.2d 1319, 1324 (La. 1978) ; La. C.Cr.P. art. 921.The Criminal Code does not define "great bodily harm." However, the somewhat analogous "serious bodily inj......
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...prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Marse, 365 So.2d 1319, 1322-24. La.C.Cr.P. art. 921.In Louisiana, as a general principle of law, a conviction may be sustained on the uncorroborated testimony of a......
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