State v. Marsh

• Decision Date: 08 November 2017
• Docket Number: NO. 2017–KA–0584,2017–KA–0584
• Citation: 231 So.3d 736
• Parties: STATE of Louisiana v. Jermeny MARSH
• Court: Court of Appeal of Louisiana — District of US

231 So.3d 736

STATE of Louisiana

v.Jermeny MARSH

NO. 2017–KA–0584

Court of Appeal of Louisiana, Fourth Circuit.

NOVEMBER 08, 2017

Leon Cannizzaro, District Attorney, J. Taylor Gray, Assistant District Attorney, DISTRICT ATTORNEY'S OFFICE ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE, STATE OF LOUISIANA

Christopher A. Aberle, LOUISIANA APPELLATE PROJECT, P.O. Box 8583, Mandeville, LA 70470–8583, COUNSEL FOR DEFENDANT/APPELLANT, JERMENY MARSH

(Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew Woods, Judge Terrel J. Broussard, Pro Tempore)

Judge Terrel J. Broussard, Pro Tempore

Defendant, Jermeny Marsh ("Defendant"), was charged by bill of information with battery of a correctional facility employee while under the jurisdiction and legal custody of the "Youth Study Center." On February 5, 2015, Defendant elected a bench trial. The district court rendered a verdict of guilty of attempted battery of a correctional facility employee and imposed a sentence of ninety days in the parish jail, with credit for time served, to run consecutively with any other sentences.

Defendant timely filed an out-of-time appeal which was granted.¹ On appeal, Defendant assigns two errors: (1) his conviction of attempted battery of a correctional facility employee is not a valid offense under Louisiana law; and (2) the State presented insufficient evidence to support the charged offense.

As set forth in the reasons below, we vacate Defendant's conviction and sentence and remand the matter to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY :

Defendant was charged with battery of a correctional facility employee, a violation of La.R.S. 14:34.5 which provides in pertinent part:

A. (1) Battery of a correctional facility employee is a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a correctional facility employee acting in the performance of his duty.

(2) For purposes of this Section, "correctional facility employee" means any employee of any jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility.

* * *

B. (1) Whoever commits the crime of battery of a correctional facility employee shall be fined not more than five hundred dollars and imprisoned not less than fifteen days nor more than six months without benefit of suspension of sentence.

(2) If at the time of the commission of the offense the offender is under the jurisdiction and legal custody of the Department of Public Safety and Corrections, or is being detained in any jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility, the offender shall be fined not more than one thousand dollars and imprisoned with or without hard labor without benefit of parole, probation, or suspension of sentence for not less than one year nor more than five years. Such sentence shall be consecutive to any other sentence imposed for violation of the provisions of any state criminal law.²

At the trial, only one witness testified. Officer Brittany Jackson ("Officer Jackson") of the New Orleans Police Department testified that Defendant was detained at the "Youth Study Center" ("the facility"). Officer Jackson recalled she was summoned to the facility on August 9, 2014, around 5:52 p.m. to investigate a complaint by Officer Robert Canon ("Officer Canon") who worked at the facility.³ Officer Jackson explained that Officer Canon alleged he was investigating an altercation at the detention center when Defendant approached him. Officer Canon told Defendant to get back. Defendant belligerently retorted he ran the place and pushed Officer Canon. Defendant was arrested the same day by Officer Jackson for the charge of simple battery of a correctional facility employee.

At the conclusion of the bench trial, Defendant's attorney requested the district court find Defendant guilty of the lesser included offense, the misdemeanor. The district court questioned whether the attorney was referring to an attempt charge. Defendant's attorney responded, "Just like an attempt. [sic] Or [sic] the evidence can be legally sufficient to submit to the jury the charge of second-degree murder, and the jury could come back with manslaughter, even though the evidence is legally sufficient." The State reurged the charge was battery of a correction officer in a facility ( La.R.S. 14:34.5 ). The district court found Defendant guilty "as charged." Defendant waived sentencing delays. The district court noted, on the record, that Defendant had been in jail since August 9, and sentenced Defendant to ninety days, credit for time served. The State, citing section (B)(2) of La.R.S. 14:34.5, argued that the sentence was illegally lenient, and Defendant's attorney urged the lesser included offense made more sense. The district court stated, "[D]ue to the additional deliberations, [it] finds the defendant guilty of attempt [14:] 34.5," and it imposed a sentence of ninety days in the parish prison, consecutive with any other sentence Defendant was serving with credit for time served. The district court concluded the proceeding by stating, "Both sides won. The State got a felony, and you got no extra time. Another Solomon decision."

ERRORS PATENT/ASSIGNED ERROR NO. 1:

This Court routinely reviews the record on appeal for errors patent. State v. Lewis , 15-0773, p. 9 (La.App. 4 Cir. 2/3/16), 187 So.3d 24, 29. A review of the record reveals there is an error patent regarding the verdict, which is assignment of error number one.⁴

Attempted Battery Of A Correctional Facility Employee Is Not Designated As A Crime In Louisiana.

Attempted battery of a correctional facility officer is a non-crime under Louisiana Law.⁵ In State v. Lambert , 14-1138, p. 6 (La.App. 4 Cir. 2/25/15), 160 So.3d 1097, 1101, this court held convictions rendered for attempts to commit various degrees of battery are "non-crimes" in Louisiana whether the defendant pled guilty or was convicted. Although the State argues this particular crime, attempted battery of a correctional facility employee, is distinguishable from the other attempted battery crimes, the jurisprudence supports otherwise.

In State v. Mayeux , 498 So.2d 701, 702–04 (La. 1986) (hereinafter referred to as " Mayeux I "), the court recognized, as an error patent, the conviction of attempted aggravated battery was an unresponsive verdict and not specifically designated as a crime in Louisiana. Since Mayeux I , this Court has held, an attempted battery is not specifically designated as a crime in Louisiana. In State v. Nazar , 96-0175, p. 2 (La.App. 4 Cir. 5/22/96), 675 So.2d 780, 781, this court found the conviction of attempted simple battery was a non-crime. In State v. Lewis , 15-0773, p. 19 (La.App. 4 Cir. 2/3/16), 187 So.3d 24, 34–35, this court held the conviction of attempted misdemeanor battery of a police officer was a non-crime.⁶ In State v. Arita , 01-1512, p. 4 (La.App. 4 Cir. 2/27/02), 811 So.2d 1146, 1149, this court found that attempted second degree battery is not a recognized crime in Louisiana.

In State v. Johnson , 01-0006, p. 5 (La. 5/31/02), 823 So.2d 917, 921, the Supreme Court, considered the possible responsive verdicts for a charge of battery on a police officer including while the offender was in the custody of a correctional facility, a violation of La.R.S. 14:34.2.⁷ The crime at issue, La.R.S. 14:34.5, is very similar to La.R.S. 14:34.2, except La.R.S. 14:34.5 encompasses any employee in a correctional facility. The Johnson court set forth the valid responsive verdicts for battery of a police officer ( La.R.S. 14:34.2 ), which are instructional in reviewing this error: 1) Guilty as charged (battery on a police officer when the offender is in the custody of a correctional facility) (felony grade); (2) Guilty of battery on a police officer (misdemeanor grade); (3) Guilty of simple battery (misdemeanor) and (4) Not guilty. Johnson , 823 So.2d at 920. The court explained, "[D]espite the broad language of La.R.S. 14:27(C), that attempt 'is a separate but lesser grade of the intended crime,' attempted battery is not a proper responsive verdict to a charged offense of battery because it is not a separate offense in Louisiana." Johnson , 823 So.2d at 921 (quoting Mayeux I , 498 So.2d at 703 ).

Based upon Louisiana's jurisprudence, we find attempted battery of a correctional facility employee is a non-crime, and the trial court erred in imposing a sentence on a non-existent crime.

In its brief to this court, the State questions the authority of the district court to enter a verdict to a non-existent crime after finding Defendant guilty as charged. It urges the original verdict should stand.⁸ As noted above, the trial court, after further deliberations, entered a conviction of attempted battery of a correctional facility employee. The State failed to object and did not raise this issue in the district court. Failure to timely object at the district court level is fatal to the State's assertions, and we will not consider the State's argument. La.Code Crim.P. art. 841 ; State v. Vernon , 16-0692, p. 8 (La.App. 4 Cir. 12/21/16), 207 So.3d 525, 529, writ denied , 17-0137 (La. 9/22/17), 227 So.3d 824, 2017 WL 4546424.⁹

The Conviction Of Attempted Battery Of A Correctional Facility Employee Is A Nullity.

In Mayeux I , the court held, "[W]e find the verdict [guilty of attempted aggravated battery] to be wholly invalid and without legal effect to convict or acquit the defendant of aggravated battery or of lesser included responsive offense." Mayeux I , 498 So.2d at 704 ; See also , Arita , 811 So.2d at 1150, and Nazar , 675 So.2d at 783. Following Mayeux I , the remedy imposed by this Court, when the trier of fact imposes a non-existent crime, is to find the conviction a nullity, to find that double jeopardy does not attach, to vacate the sentence, and to...