State v. Williamson

• Court: Louisiana Supreme Court
• Writing for the Court: CALOGERO; BLANCHE; LEMMON; MARCUS; DENNIS; BLANCHE; LEMMON; DENNIS
• Citation: State v. Williamson, 389 So.2d 1328 (La. 1980)
• Decision Date: 07 October 1980
• Docket Number: No. 67338,67338
• Parties: STATE of Louisiana v. John Morgan WILLIAMSON.

Page 1328

389 So.2d 1328

STATE of Louisiana v. John Morgan WILLIAMSON.

No. 67338.

Supreme Court of Louisiana.

Oct. 7, 1980.

Rehearing Denied Nov. 10, 1980.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N Brown, Dist. Atty., James M. Bullers, Asst. Dist. Atty., for plaintiff-appellee.

S. Patrick Phillips, Indigent Defender B., Bossier City, for defendant-appellant.

CALOGERO, Justice.

Defendant, John Morgan Williamson, was charged by bill of information with the crime of attempted first degree murder, a violation of R.S. 14:27 and 14:30. He was tried before a twelve person jury which found him guilty of attempted second degree murder. He was thereafter charged with and convicted of being a multiple offender under R.S. 15:529.1, and sentenced to sixty years at hard labor. He now appeals on the basis of eleven assignments of error, eight of which are argued in brief. Because we reverse defendant's conviction and order him retried for the reasons which follow, we find it unnecessary to address the specific assignments of error.

Near midnight on July 17, 1979, Airman Jackie Neie from Barksdale Air Force Base called for a Yellow Cab to pick him up at the Mint Lounge in Bossier City. Before the cab arrived, he met two fellow airmen who offered him a ride back to the base, one of whom was the victim, Gary Batsell. When the cab arrived, the driver was told he was no longer needed and given a dollar for his trouble.

After a brief verbal exchange, the cab followed the three airmen for several miles and jockeyed with their truck along the highway. The cab was directly behind the truck when it turned at an intersection and a shot was fired, apparently from the taxi. The bullet entered the back window of the truck and struck Batsell in the back of the neck. The victim was paralyzed from the neck down for ten months, then died as a result of his injuries.

Police investigation immediately after the shooting revealed that the cab dispatched to the Mint Lounge in response to the call was cab 41, driven by John Williamson. A police radio broadcast went out alerting officers to be on the lookout for cab 41 and the defendant.

The Shreveport Police Department spotted the defendant within an hour of the shooting. Defendant was stopped and was patted down while standing next to the open door of the cab. In response to a statement made by the defendant, the officer retrieved a pistol from under the seat of the cab. Tests by a weapons identification expert proved the seized gun to be the same one which fired the shot that hit the victim.

By legislative enactment, the law pertaining to first and second degree murder had been changed on June 29, 1979, shortly before the shooting of Airman Batsell on July 17, 1979. ¹

Between October 1, 1976 and June 29, 1979, first degree murder had been defined simply as any specific intent killing:

"First degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm...", (R.S. 14:30, as amended by Acts 1976, No. 657, effective October 1, 1976);

and second degree murder after September 8, 1978 and before June 29, 1979 had by definition included only felony murder:

"Second degree murder is the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm...." (R.S. 14:30.1 as amended by Acts 1978, No. 796, § 1, effective September 8, 1978).

By amendment to the law effective June 29, 1979, however, the first degree murder statute was changed to include only four restrictive specific intent killings:

"First degree murder is the killing of a human being:

(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated escape, aggravated arson, aggravated rape, aggravated burglary, armed robbery, or simple robbery;

(2) When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman or peace officer engaged in the performance of his lawful duties;

(3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; or

(4) When the offender has specific intent to kill or inflict great bodily harm and has offered, has been offered, has given, or has received anything of value for the killing....", (R.S. 14:30, as amended by Acts 1979, No. 74, § 1, effective June 29, 1979);

and the definition of second degree murder was changed to include, besides felony murder, any specifically intended murder:

"Second degree murder is the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great bodily harm; or

(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm...." (R.S. 14:30.1, as amended by Acts 1979, No. 74, § 2, effective June 29, 1979.) ²

This alteration of the law, the most recent in a series of changes ³ made by the legislature and prompted by their construction of court decisions, has been the cause of some confusion as to the definitions of the crimes of first and second degree murder.

The judge, along with the prosecutor and counsel for the defense, apparently entertained the misconception that the law as it appeared prior to the 1979 amendment was still in effect at the time of the shooting, when in fact the new law had gone into effect some nineteen days before the offense. The charge reflected that mistake. The trial judge told the jury that to find defendant guilty of attempted first degree murder they need only determine that he specifically intended to kill, and to find the defendant guilty of attempted second degree murder they could do so only upon finding a commission of felony murder, when in truth, first degree murder was the four restrictive specific intent killings and second degree murder was any specific intent killing and/or felony murder.

The situation was further complicated by the judge's reading to the jury a list of verdicts responsive to the charge of attempted first degree murder. He told the jury that attempted second degree murder was responsive to a charge of attempted first degree murder. That of course is true under the law pertinent to the date of the offense, i. e., second degree murder, any "specific intent" killing, is lesser and included to first degree murder as defined in R.S. 14:30 as amended by Acts 1979, No. 74, § 1. However it was not so, and we so held, in State v. Booker, 385 So.2d 1186 (La.1980), ⁴ that felony murder was lesser and included to the charge of any specific intent killing.

The consequence of this misstatement of the law is that the jury determined defendant was not guilty (a conviction of a lesser acquits of the greater-Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)) of an attempted specific intent killing (what they were told was attempted first degree murder) and guilty of attempted felony murder (what they were told was attempted second degree murder) which the evidence clearly did not support; yet technically their conviction for attempted second degree murder fit the actually prevailing law and evidence upon which the state relied.

We determine that fairness dictates reversal of the defendant's conviction under these circumstances. The jury is charged to apply the law as given them by the judge, C.Cr.P. art. 802(2). Presuming that they did so, the otherwise valid verdict was in truth a determination that defendant committed a felony murder. The evidence and indeed the state's very theory of this case does not support such a determination.

The state points out that defendant did not object to the erroneous jury instruction concerning definitions of the crimes of first degree and second degree murder. And they call our attention to a long line of cases to the effect that erroneous jury instructions are not errors patent on the face of the record. Absent objections and because the trial court is denied an opportunity to correct them, such errors are generally not reviewable. State v. Progue, 350 So.2d 1181 (La.1977); State v. Roche, 341 So.2d 348 (La.1976); State v. Smith, 339 So.2d 829 (La.1976).

The state's argument is of course correct, so far as it goes. Nonetheless it is within the province of this reviewing court to entertain complaint of Constitutional violations on appellate review notwithstanding that consideration of such complaint more often than not is deferred until filing of a writ of habeas corpus. This Court's usual pretermission of such issues stems from the need of an evidentiary hearing ⁵ which can only be had incident to the writ of habeas corpus. The record before us, however, bears full and sufficient proof of the error which no posterior hearing could augment. For this reason, the need for delay is obviated.

In the case at hand the asserted error involves the very definition of the crime of which defendant was in fact convicted. Such an error is of such importance and significance as to violate fundamental requirements of due process.

Furthermore to defer consideration until defendant were to file a writ of habeas corpus would only serve to prolong the occasion when defendant might again be tried, with resultant prejudice to the state's opportunity to reassemble its witnesses and evidence. For these reasons we find it preferable now to reverse defendant's...