State v. Thibodeaux
Decision Date | 30 January 1980 |
Docket Number | No. 64893,64893 |
Citation | 380 So.2d 59 |
Parties | STATE of Louisiana v. Patrick THIBODEAUX. |
Court | Louisiana Supreme Court |
J. Harold Fontenot, Opelousas, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Goudeau, III, Dist. Atty., Robert Brinkman, First Asst. Dist. Atty., for plaintiff-appellee.
*
Defendant Patrick Thibodeaux was charged by bill of information with distribution of amobarbital and secobarbital, in violation of R.S. 40:964 III B(1) and R.S. 40:968. After trial, the jury returned a verdict of "guilty of possession with intent to distribute a controlled dangerous substance." The trial court sentenced defendant to six years at hard labor. On appeal defendant, relies on two assignments of error.1 Because there is an error patent on the face of the record (an error "discoverable by a mere inspection of the pleadings and proceedings" as per Article 921), we reverse defendant's conviction and sentence and remand to the district court.
Under Article 814 A(45) of the Code of Criminal Procedure, the Only responsive verdicts which may be rendered to the charge of distribution of controlled dangerous substances are the following:
"Not guilty."
When responsive verdicts are mandated by Article 814, the trial court is without authority to vary or to add to the prescribed verdicts. State v. Simmons, 357 So.2d 517 (La.1978).
The trial court, however, submitted to the jury before it retired for deliberation a list of responsive verdicts which included two verdicts which are not responsive under Article 814 A(45), i. e., possession with intent to distribute and attempted possession with intent to distribute.2 There was no objection by defendant to the charges and the jury following the trial court's instructions returned a verdict of guilty of possession with intent to distribute a controlled dangerous substance.
Although this Court has held that absent an objection, deficiencies in the responsive verdicts can not be availed of upon appeal, in those cases the error existed only in the list of possible verdicts submitted to the jury and not in the actual verdict returned by the jury. In State v. Turner, 337 So.2d 1090 (La.1976) we held that an alleged error concerning the sufficiency of the list of responsive verdicts submitted to the jury may not be considered unless an objection is made in the trial court in time for the trial judge to correct the error. In Turner, however, despite the error in the list of verdicts submitted to it, the jury did in fact return a verdict which was responsive to the offense charged.
In the instant case not only were the list of verdicts and the judge's charge incorrect, but the jury actually returned a verdict which was not responsive under Article 814 A(45). Although the jury's non-responsive verdict was induced by the trial court's unobjected to erroneous instructions, we find that the verdict is clearly non-responsive and therefore should have been refused by the trial court in accordance with Article 813.3
It has been suggested that although the verdict of "guilty of possession with intent to distribute a controlled dangerous substance" is not responsive under Article 814, that verdict does fall within the ambit of the responsive verdict "guilty of possession of (a) controlled dangerous (substance)" and that the addition of "with intent to distribute" is merely a "qualification" of the verdict which under Article 8174 is without effect upon the finding of the jury. It is argued therefore that defendant was validly found guilty of Possession of a controlled dangerous substance and should merely be resentenced accordingly.
This argument lacks merit. The addition of "with intent to distribute" to the crime of possession of a controlled dangerous substance does not simply qualify the verdict; rather it transforms it into a verdict of guilty of another statutory offense, one which in this case is not responsive to the instant charge.
Code of Criminal Procedure article 920(2) provides that this Court shall consider on appeal "an error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." The jury's verdict is part of the pleadings which this Court must review for errors. State v. Egena, 347 So.2d 1106 (La.1977). Because the verdict was invalid and because a sentence based on an invalid verdict is itself invalid (La. C.Cr.P. art. 872), the conviction and sentence of defendant must be set aside.
Because we find an error patent and reverse defendant's conviction and sentence, discussion of defendant's assignments of error would, in the ordinary case, be superfluous; however, because the error might occur on retrial, we deem it advisable to consider defendant's assignment two which has possible merit.
This assignment arises out of testimony which the trial judge allowed a police officer to give, over objection by the defense. A defense witness, Patty Andrus, had testified on direct and cross-examination that defendant had never provided her with drugs. Later in the trial, however, the state placed a police officer on the stand for the purpose of testifying that Patty Andrus had made a statement on May 9, 1978 that the defendant had indeed given her drugs. Defense counsel objected to the officer's testimony on the ground that it was inadmissible hearsay. The trial court overruled the objection and allowed the officer to testify.
The trial court's ruling was erroneous. The officer's testimony was clearly hearsay and inadmissible. Furthermore, it was not admissible under the exception to the hearsay rule which allows hearsay concerning a...
To continue reading
Request your trial-
State v. Shupp
...to be refused by the trial court in accordance with La.Code Crim.P. art. 813 and is discoverable as an error patent. See State v. Thibodeaux, 380 So.2d 59 (La.1980).2 In Thibodeaux, 380 So.2d 59, the supreme court, without any discussion as to whether an acquittal should be entered for the ......
-
State v. Tucker
...587 So.2d 46 (La.App. 2 Cir.1991), writ denied, 589 So.2d 1066 (1991) ; State v. Square, 433 So.2d 104 (La.1983) ; State v. Thibodeaux, 380 So.2d 59 (La.1980). In State v. Campbell, 95–1409 (La.3/22/96), 670 So.2d 1212, the court held that attempted jury tampering is not a lesser and includ......
-
State v. Gasser
...where a "verdict is clearly non-responsive," it should [be] refused by the trial court in accordance with Article 813." State v. Thibodeaux , 380 So. 2d 59, 61 (La. 1980). See also , State v. Latique , 2018-622, p. 13 (La. App. 3 Cir. 2/20/19), 265 So. 3d 93, 103, writ denied , 2019-00707 (......
-
State v. Friday
...verdicts are mandated by Article 814, the trial court is without authority to vary or to add to the prescribed verdicts. State v. Thibodeaux, 380 So.2d 59, 60 (La.1980). This assignment of error is without merit.CONCLUSION The defendant's convictions and sentences are affirmed. CONVICTIONS ......