248 So. 3d 415
La. Ct. App.2018Background
- Defendant Tommie Anderson was charged with attempted aggravated rape of a child under 13; after a jury trial he was convicted instead of sexual battery and sentenced to 75 years at hard labor.
- Allegations arose from a November 2014 overnight stay in which an 8-year-old victim later reported sexual contact and medical/forensic evidence showed genital hypopigmentation and discharge.
- The trial judge submitted a list of responsive verdicts to the jury that included offenses not authorized as responsive to attempted aggravated rape under La. C. Cr. P. art. 814A(9), including sexual battery.
- Defense did not object to the jury instructions at trial; the jury returned a verdict of guilty of sexual battery, a verdict the appellate court found nonresponsive to the indictment.
- Appellate court held that because Article 814 prescribes the exclusive responsive verdicts for attempted aggravated rape the trial court had no authority to add others; the nonresponsive verdict invalidated the conviction and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sexual battery was a permissible responsive verdict to attempted aggravated rape under La. C. Cr. P. art. 814A(9) | State relied on trial court’s instruction listing sexual battery among responsive verdicts | Anderson argued the instruction and resulting verdict were improper because Article 814 lists exclusive responsive verdicts and sexual battery is not among them | Court held sexual battery was a nonresponsive verdict and invalid; conviction reversed and sentence vacated |
| Whether trial court could add lesser-included or different offenses under Article 815 | State tacitly accepted judge’s use of Article 815 approach | Anderson contended judge misapplied Article 815 where Article 814 applied exclusively | Court held judge erred: Article 814 governs and precludes adding responsive verdicts under Article 815 for charged offenses listed in Article 814 |
| Appropriate remedy when nonresponsive verdict returned | State argued new trial appropriate given sufficient evidence | Anderson sought acquittal and double jeopardy protection | Court held remand for a new trial is appropriate because error was judicial (not insufficiency of evidence); double jeopardy did not bar retrial |
| Effect of defendant’s failure to object at trial and availability of motion in arrest of judgment | State noted defendant did not object but could have used post-verdict remedies | Anderson argued error discoverable on appeal despite lack of contemporaneous objection | Court noted defendant could have sought relief via motion in arrest of judgment but ruled error is plain and reviewable; reversal and remand for new trial followed |
Key Cases Cited
- State v. Simmons, 357 So.2d 517 (La. 1978) (trial court may not vary responsive verdicts prescribed by Article 814)
- State v. Thibodeaux, 380 So.2d 59 (La. 1980) (procedure when jury returns nonresponsive verdict; court must refuse and remand jury)
- State v. Campbell, 670 So.2d 1212 (La. 1996) (remand for new trial where jury returned nonresponsive verdict)
- State v. Mayeux, 498 So.2d 701 (La. 1986) (nonresponsive verdict issues and remedy discussion)
- State v. Graham, 180 So.3d 271 (La. 2015) (distinguishing circumstances where adding a nonresponsive verdict after resting rendered trial fundamentally unfair; held acquittal required)
- Burks v. United States, 437 U.S. 1 (1978) (double jeopardy bars retrial when conviction overturned for insufficiency of evidence)
- United States v. Jorn, 400 U.S. 470 (1971) (double jeopardy does not bar retrial when conviction set aside for trial error)