State v. GoodleyState v. Goodley
Steven Broussard, Lake Charles, for defendant-appellant.
CALOGERO, Justice.
Defendant Paul Goodley was charged by grand jury indictment on November 2, 1979 with the crime of first degree murder in violation of
In reviewing the record, we have discovered a possible error in the case which requires our consideration notwithstanding the absence of an assignment of error, that is, whether the verdict, concurred in by only ten of the twelve jurors, was valid. Because we hold that the verdict was not valid, requiring the reversal of defendant‘s conviction and sentence, we pretermit consideration of defendant‘s claim that his sentence is excessive.
Article 920 of the Code of Criminal Procedure dictates the scope of our review in criminal appeals and provides in pertinent part as follows:
“The following matters and no others shall be considered on appeal ... (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” (emphasis provided)
Under this provision, the Court will consider any errors that are “discoverable by a mere inspection of the pleadings and proceedings,” or patent errors.
In the present case, defendant was charged with first degree murder, a capital offense, i. e., one in which a sentence of death may be imposed. The trial court instructed the jury that while twelve jurors had to concur in order to find defendant guilty as charged, only ten of the twelve had to agree on the responsive verdicts of second degree murder or manslaughter. This instruction also appeared on the verdict sheet handed by the jury.1 returned a verdict
This Court has consistently held that while the jury charge does not constitute a patent error, that is, one discoverable by inspection of the pleadings and proceedings and reviewable without being assigned as error, the jury verdict does. State v. Cook, 396 So. 2d 1258 (La. 1981); State v. Vincent, 387 So. 2d 1097 (La. 1980); State v. Wrestle, 360 So. 2d 831 (La. 1978); State v. Craddock, 307 So. 2d 342 (La. 1975); and State v. Sanford, 248 La. 630, 181 So. 2d 50 (1965). Thus under the authority of
“A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict.” (emphasis provided)
In addition to these express provisions it has been determined that a conviction on a lesser included offense operates as an acquittal on the greater charged offense.
The issue in this case is complicated, however, by the fact that prior to trial, in response to a defense motion, the state stipulated that it “... has not and does not intend to seek the death penalty.” Thus the question presented here is not simply whether a unanimous verdict is required to convict one charged with a capital offense of a lesser included offense, but rather, whether a unanimous verdict is required to convict of a lesser offense a person charged with a capital offense where the state has stipulated that it will not seek the death penalty. For the following reasons, we hold that a unanimous verdict is required.
The Legislature, in enacting the controlling provision herein, relied on the severity of the punishment provided for a crime as the basis for its classification scheme in providing the number of jurors which must compose a jury and the number of jurors which must concur to render a verdict. As stated above,
“A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict.”
Thus, the Legislature determined that for crimes that were so serious as to validly carry the death penalty, certain special procedural rules were additionally required, among which was the requirement of a unanimous jury to render a verdict. This determination is not based on an after the fact examination of what crime the defendant
The meaning of these provisions3 has previously been considered by this Court in State v. Gilmore, 332 So. 2d 789 (La. 1976), in a somewhat similar situation. In Gilmore, defendant had originally been charged with first degree murder. However, the state later amended the indictment and defendant went to trial on the charge of second degree murder. Defendant therein argued that since he had originally been charged with the crime of first degree murder, a capital crime, a unanimous jury would be required to convict him of the lesser offense of second degree murder. In holding for the state the Court, considering the above provisions, concluded that:
“Although the number of jurors to try a case is determined by the gravity or nature of the crime charged ... an indictment will not unalterably fix the composition of the jury .... We think it clear, then, that the charge under which an accused is prosecuted is the determining factor.”
More recently when faced with the identical question presented here, whether a unanimous verdict was required in a first degree murder case where the state had stipulated it would not seek the death penalty, this Court, in a per curiam writ denial in response to a pre-trial writ application ruled:
“The trial court has not erred in ruling that the jury verdict must be twelve out of twelve.” State v. Sermon, 383 So. 2d 38 (La. 1980).
In view of these court actions in Gilmore, supra, and Sermon, supra, and the constitutional and statutory provisions outlined above, we find that a unanimous jury is required in a case where the defendant is being prosecuted under an unamended charge of first degree murder, a capital offense, to render any verdict, notwithstanding the fact that the state may have stipulated that it would not seek the death penalty.4
As was the result in Gilmore, supra, if the state does not want to meet the unanimous verdict requirement mandated in prosecutions of capital crimes, it can re-charge the defendant with a non-capital crime.
In view of our holding that defendant‘s conviction was not valid because not returned by a unanimous jury and that his conviction and sentence must be set aside, we pretermit consideration of defendant‘s argument that his sentence was excessive.
Decree
For the foregoing reasons, the conviction and sentence of defendant must be set aside and the case remanded to the trial court for a new trial.
REVERSED AND REMANDED.
LEMMON, J., dissents and will assign reasons.
Notes
The verdict sheet provided the jury appeared as follows:
“1. We, the jury, find the defendant guilty as charged. (All twelve of you must agree)
_____________________ FOREPERSON June_______, 1980
2. We, the jury, find the defendant guilty of second degree murder. (Ten of you must agree)
______________________ FOREPERSON June_______, 1980
3. We, the jury, find the defendant guilty of manslaughter. (Ten of you must agree)
_______________________ FOREPERSON June_______, 1980
4. We, the jury, find the defendant not guilty. (All twelve of you must agree)
_______________________ FOREPERSON June________, 1980”