STATE of Louisiana
v.
Lindy CRADDOCK.
Supreme Court of Louisiana.
Lyall G. Shiell, Jr., John M. Lawrence, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrique, Asst. Dist. Atty., for plaintiff-appellee.
CALOGERO, Judge.
The defendant was charged by Bill of Information with the violation of R.S. 40:966(A), distribution of marijuana. He was found guilty as charged after a trial by jury and was sentenced to nine years imprisonment. He has appealed his conviction and sentence, relying upon an alleged error discoverable by a mere inspection of the pleadings and proceedings and *343 without inspection of the evidence as no Bills of Exceptions were perfected nor, as is directed by the 1974 amendment to Article 920, any Assignment of Errors designated. La.C.Cr.P. Art. 920.
Defendant submits that a sheet bearing three responsive verdicts,[1] (as well as twelve juror signatures and the handwritten verdict notation "guilty as charged") indicates that four additional responsive verdicts[2] were not charged to the jury and that this failure to charge the additional responsive verdicts is error discoverable under Article 920(2). It has been settled that if the error complained of is discoverable under Article 920(2), the failure to object does not operate as a waiver of that error. State v. Raby,
Some illustrative examples of the record for error discoverable purposes are the caption, a statement of time and place of holding the court, the indictment or information with the endorsement, the arraignment, the plea, mention of the impaneling of the jury, verdict and judgment of the court, State v. Sanford,
The verdict is normally placed, as required by statute, on the reverse of the list of responsive verdicts given the jury. La. C.Cr.P. Arts. 809, 810. However, mere presence in the record transmitted to this Court is not sufficient, by itself, to allow this Court to review for error under Article 920(2). State v. Sanford, supra; State v. Wilson,
Absent an objection, the defendant may not on appeal complain of the judge's charge to the jury, even though the charge may happen to appear in the record. State v. Chaney,
State v. Daleo explained "it is not considered proper that the defendant should be permitted to sit idly by while the judge is making an erroneous charge to the jury, take his chances upon the verdict, and, if against him, then by assignment of error or motion in arrest take advantage of it."
We hold that alleged error concerning the sufficiency of the list of responsive verdicts given the jury, like error in the judge's charge to the jury, is not reviewable under Art. 920(2) and may not be considered unless objection is made in the trial court in time for the trial judge to correct the error.
We have reviewed the record for error discoverable by a mere inspection of the pleadings and proceedings and find none. Therefore it is ordered that defendant's conviction and sentence be affirmed.
BARHAM, J., dissents with reasons.
MARCUS, J., dissents.
BARHAM, Justice (dissenting).
I respectfully dissent. In my opinion, error concerning the sufficiency of the list *344 of responsive verdicts given the jury is reviewable as a part of the pleadings and proceedings under La.C.Cr.P. art. 920(2). In accordance with that belief, it is my opinion that failure on the part of the defense to object to the list of responsive verdicts submitted to the jury did not constitute a waiver of the error. See State v. Raby,
In the case before us, the responsive verdicts submitted to the jury listed three responsive verdicts to the charge of distribution of marijuana, i. e., (1) guilty as charged; (2) guilty of attempted distribution of a controlled dangerous substance, to-wit, marijuana; and (3) not guilty. In State v. Stewart,
In my opinion, this defendant was seriously prejudiced by the failure of the court to include the lesser included offenses of the crime charged in its list of responsive verdicts submitted to the jury. Moreover, I believe that this error was error discoverable from the pleadings and proceedings for the following reasons. La.Code of Criminal Procedure Article 809 provides:
"After charging the jury, the judge shall give the jury a written list of the verdicts responsive to each offense charged, with each separately stated. The list shall be taken into the jury room for use by the jury during its deliberation." (Emphasis here and elsewhere supplied).
La.Code of Criminal Procedure Article 810 further provides:
"When a verdict has been agreed upon, the foreman shall write the verdict on the back of the list of responsive verdicts given to the jury and shall sign it. * * *"
Thus the verdict must be placed on the back of the list of responsive verdicts because that is what the Code of Criminal Procedure requires. The jury cannot reach a verdict that is not included in the list of responsive verdicts given to them, so it is not possible for them to find a defendant guilty of a lesser included offense, which of course would carry a lesser penalty, if the judge has failed to include that offense among the possible verdicts on the list which the jury takes with them. See La.C.Cr.P. arts. 313, 314.
For these reasons, I firmly believe that the list of responsive verdicts is the very foundation of the verdict, and is an essential part thereof; and of course the verdict is the very basis of the sentence. It is well established that the verdict is part of the pleadings and proceedings reviewable by an appellate court under La.C.Cr.P. art. 920(2). See, e. g., State v. Comeaux,
In my opinion, the defendant's conviction and sentence should be reversed and remanded for further proceedings in accordance with the views I have set forth above. I must dissent from the majority's affirmance.
NOTES
Notes
[1] 1) Guilty as charged; 2) guilty of attempted distribution of a controlled dangerous substance, to wit, marijuana; and 3) not guilty.
[2] 1) Possession with intent to distribute; 2) attempted possession with intent to distribute; 3) possession and; 4) attempted possession.