State v. Price

• Decision Date: 06 July 2016
• Docket Number: Nos. 2015–KA–0364,2015–K–0082.,s. 2015–KA–0364
• Citation: 216 So.3d 1019
• Parties: STATE of Louisiana v. Jubbard PRICE. State of Louisiana v. Jubbard Price.
• Court: Court of Appeal of Louisiana — District of US

216 So.3d 1019

STATE of Louisiana

v.Jubbard PRICE.

State of Louisiana

v.Jubbard Price.

Nos. 2015–KA–0364

2015–K–0082.

Court of Appeal of Louisiana, Fourth Circuit.

July 6, 2016.

Vacated on Rehearing Feb. 22, 2017.

Leon A. Cannizzaro, Jr., District Attorney, New Orleans, LA, for Appellee/State of Louisiana.

Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS ).

SANDRA CABRINA JENKINS, Judge.

Defendant Jubbard Price appeals his convictions and sentences for five counts of simple kidnapping and two counts of negligent homicide. In a consolidated writ application, the State seeks review of the trial court's finding that Defendant was not a second-felony habitual offender.

For the reasons that follow, we reverse Defendant's convictions and vacate his sentences on the simple kidnapping counts, counts 1 through 5, and remand for a new trial on those five counts. We affirm Defendant's convictions and sentences for negligent homicide, counts 7 and 8. Finally, in light of our reversal of counts 1 through 5, we grant the State's writ application. The judgment of January 9, 2015, finding that the State failed to prove the identity of the defendant in the predicate offense is vacated. This matter is remanded to the trial court for further proceedings consistent with this opinion.

STATEMENT OF THE CASE

On May 3, 2013, Defendant was charged by grand jury indictment, in Counts 1 through 5, with second degree kidnapping in violation of La. R.S. 14:44.1 ; and in Counts 6 through 8, with second degree murder in violation of La. R.S. 14:30.1. Defendant was tried by a twelve-person jury on June 9 through 13, 2014, and found guilty of five counts of simple kidnapping; not guilty of negligent homicide, as to Count 6; and guilty of negligent homicide, as to Counts 7 and 8. Defendant waived sentencing delays and was sentenced on October 17, 2014 to five years imprisonment at hard labor on each of Counts 1 through 5, 7, and 8, with all sentences to run consecutively. The trial court also fined Defendant $5,000 on each of the seven counts. The trial court granted Defendant's motion for appeal. The State filed a multiple bill of information alleging that Defendant was a second-felony habitual offender; at a January 9, 2015 hearing, the trial court found Defendant was not a habitual offender.

The State timely noticed and filed an application for supervisory review of the trial court's habitual offender judgment. That writ was consolidated with Defendant's appeal in the present case.

FACTS

Defendant was convicted of the January 12, 2012 simple kidnapping of Keishauna Keppard, Alisia White, Reyland Berry, Keris Lackings, and Lavonda Hayes; and negligent homicide in the killings of Keishauna Keppard and Reyland Berry on that same date.

On the morning of January 12, 2012, the police received a 911 call concerning a shooting at a residence on Devine Street in New Orleans East. The residence was owned by Troy Leslie who lived there with his family and numerous houseguests. Mr. Leslie was shot to death that day, along with his 20–year–old daughter, Keishauna Keppard, and one of his houseguests, Reyland Berry. Two other persons at the residence, Katrina Davis and Lavonda Hayes, were shot but survived. Victims Alisia White and Keris Lackings were not injured.

Evidence at trial revealed that Donald Johnson, Andrea Price, and Jubbard Price entered Mr. Leslie's residence and began corralling everyone into the garage by giving them the false impression that they were all going to smoke marijuana. The Defendant stayed in the garage and held everyone at gunpoint while Andrea Price and Donald Johnson roamed around the residence, presumably looking for a safe. Donald Johnson went into the master bedroom and shot Mr. Leslie and Ms. Davis in their bed, killing Mr. Leslie and injuring Ms. Davis.

Andrea Price testified that Defendant pointed a gun at the five people in the garage, Keishauna Keppard, Lavonda Hayes, Reyland Berry, Alisia White, and Keris Lackings, and told them to get on the ground. Ms. Price testified that when Reyland Berry emerged from the garage and tried to shoot her, Donald Johnson shot and killed Mr. Berry. Ms. Price also testified that she saw Donald Johnson and Defendant taking a large safe out of the house and loading it into Mr. Leslie's car. She stated that she flagged the car down, and got in. She said that when the defendants stopped at a red light, the police pulled up behind them and ordered them out of the car. She testified that Donald Johnson kept driving and crashed the car into a pole. Andrea Price stated that after the crash, she and Defendant got out of the car. Donald Johnson started shooting at the police, who returned fire, shooting and killing Johnson. Andrea Price and Defendant were also shot during the exchange. A safe was found in the vehicle in which Donald Johnson, Andrea Price, and Defendant had been driving.

Several other witnesses testified and evidence was introduced during trial to corroborate the testimony of Ms. Price.

Pro Se Assignment of Error No. 1

Defendant argues that the verdicts of guilty of simple kidnapping returned by the jury in Counts 1 through 5 of the indictment were not responsive to the indictments, all five of which charged Defendant with second degree kidnapping, and that he is entitled to have his convictions reversed as to Counts 1 through 5. We find merit to this argument, and reverse Defendant's convictions and sentences in Counts 1 through 5, and remand the case for a new trial on those counts.

A non-responsive verdict is a patent error which does not require a contemporaneous objection. State v. Jones, 13–1118, p. 6 (La.App. 4 Cir. 1/30/14), 156 So.3d 126, 129. La. C.Cr.P. art. 814(A) lists a number of offenses and responsive verdicts for those offenses. La. C.Cr.P. art. 814(A), however, does not list the offense of second degree kidnapping nor does it provide any responsive verdicts to that offense. La. C.Cr.P. art. 815 states that the responsive verdicts in all cases not provided for in La. C.Cr.P. art. 814 are guilty; guilty of a lesser and included grade of the offense charged; and not guilty. The Louisiana Supreme Court defines lesser and included offenses as "those in which all of the essential elements of the lesser offense are also elements of the greater offense charged." State v. Graham, 14–1801, p. 5 (La.10/14/15), 180 So.3d 271, 275. If any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive. Id.

Defendant was charged with second degree kidnapping, which is defined in La. R.S. 14:44.1 as the doing of any of the acts listed in Subsection B wherein the victim is: (1) used as a shield or hostage; (2) used to commit or flee from a felony; (3) physically injured or sexually abused; (4) imprisoned or kidnapped for 72 or more hours; or (5) imprisoned or kidnapped when the offender is armed, or reasonably believed to be armed, with a dangerous weapon. La. R.S. 14:44.1(A). Under subsection B, kidnapping is the: (1) forcible seizing or carrying of any person from one place to another; or (2) the enticing or persuading of any person to go from one place to another; or (3) the imprisoning or forcible secreting of any person. La. R.S. 14:44.1(B).

Thus, under La. R.S. 14:44.1, the crime of second degree kidnapping is completed by doing any one of the three acts listed in Subsection B, wherein the perpetrator also does any one of the five acts listed in Subsection A to the victim—one act from "column" B plus one act from "column" A equals second degree kidnapping. Thus, assuming an offender commits just one act listed in Subsection B and does just one thing with the victim listed in Subsection A, there are fifteen possible ways in which an offender can commit the offense of second degree kidnapping.

The jury convicted Defendant of simple kidnapping, which is defined by La. R.S. 14:45 as the intentional and forcible seizing and carrying of any person from place to place without his consent, and the intentional taking, enticing or decoying away of certain persons without consent.

There are five possible scenarios in which the evidence sufficient to support a conviction for second degree kidnapping would necessarily support a conviction for simple kidnapping—all involving the offender forcibly seizing and carrying the victim from one place to another. See La. R.S. 14:44.1(B)(1) and (A)(1)-(5), and La. R.S. 14:45(A)(1). However, there are ten other scenarios in which the evidence sufficient to support a conviction for second degree kidnapping would definitely not support a conviction for simple kidnapping. See La. R.S. 14:44.1(B)(2) & (3) and (A)(1)-(5). Put another way, it is clear that a reasonable state of facts can be imagined where the greater offense of second degree kidnapping is committed without perpetration of the lesser offense of simple kidnapping.

We find that simple kidnapping was not a responsive verdict to the charged offense of second degree kidnapping in Counts 1 through 5 of the indictment. Accordingly, we reverse Defendant's convictions for simple kidnapping in Counts 1 through 5, and remand the case for a new trial on those five counts.

Pro Se Assignment of Error No. 2.

Defendant argues that the evidence was insufficient to support his convictions as to all seven counts. Because we reverse Defendant's convictions on the five counts of simple kidnapping, we address only Defendant's convictions for negligent homicide.

Defendant was convicted in Counts 7 and 8 of negligent homicide in the deaths of Keishauna Keppard and Reyland Berry. Negligent homicide is defined as the "killing of a human being by criminal negligence." La. R.S. 14:32(A). "Criminal negligence exists when, although neither specific nor general criminal intent is present,...