State v. ThomasState v. Thomas
Willie A. Thomas was indicted by the grand jury for the first degree murder
Defendant contends the state failed to prove an essential element of the crime of first degree murder.
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.
The record reflects that on the afternoon of July 11, 1979, Deputy Kenneth Bogle was patrolling in his car when he received a call that there had been a disturbance at defendant‘s house. While en route to investigate, he received another call that there had been a shooting at the same location. As the officer pulled into defendant‘s driveway, he saw Elijah Dickson‘s body lying in the door of Dickson‘s house which was located about 65 to 75 yards behind defendant‘s house. Deputy Bogle then observed defendant emerge from a little patch of woods behind Dickson‘s house carrying a rifle. The officer got out of his car and ordered defendant to drop the rifle. Defendant ignored him and continued walking with the rifle in his hand. Deputy Bogle followed him to the door of Dickson‘s house where defendant looked at Dickson‘s body and stated, “You son of a bitch I told you I would get you.” At that time, Deputy Bogle took the rifle away from defendant and told him to go back to his house while he investigated. Defendant returned about five minutes later and kept trying to tell Deputy Bogle about what had happened. At this time, Deputy Bogle placed defendant under arrest and advised him of his rights. Defendant told the officer that Dickson had fired at him and that he had returned his fire. He also showed Deputy Bogle an area in front of his house between his truck and his boat from which he had fired the shot. The physical evidence revealed that one shot had been fired from the rifle taken from defendant but no physical evidence was found indicating that Dickson had fired any shots.
Charles Barnes and Mashack Horton were driving by Dickson‘s house shortly before the shooting when Dickson stopped them. Barnes got out of Horton‘s truck to see what Dickson wanted. Dickson told Barnes that he wanted Barnes to get something for him in Keatchie. Barnes was standing on the ground and Dickson was standing “up in the door.” As Dickson reached into his pocket to get some money, both Barnes and Horton heard a gunshot. Dickson stated, “I‘m shot,” and fell to the floor. Barnes and Horton “took off” to call
An autopsy later revealed that Dickson died as a result of a single bullet wound to the chest. The cause of death was loss of blood in the right side of the chest.
While conceding that the state proved that defendant had the specific intent to kill or to inflict great bodily harm, defendant argues that there was no evidence of the additional element required for a conviction of first degree murder. We agree.
Nonetheless, when the evidence supports a conviction on a lesser and included offense which is a legislatively authorized responsive verdict, ordering entry of a judgment of guilty of the lesser and included offense is appropriate. State v. Byrd, 385 So.2d 248 (La.1980). Second degree murder is the killing of a human being “[w]hen the offender has a specific intent to kill or to inflict great bodily harm.”
Since second degree murder requires a mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, which is the same sentence as previously imposed in this case, we do not consider it necessary that defendant be resentenced. Hence, defendant‘s sentence will be affirmed. State v. Tuckson, 414 So.2d 360 (La.1982).
DECREE
For the reasons assigned, defendant‘s conviction of first degree murder is set aside and the case is remanded for entry of judgment of guilty of second degree murder. Defendant‘s sentence is affirmed.
On Rehearing
DENNIS, Justice.
On rehearing, defendant urges us to reverse his conviction and sentence and remand the case for a new trial because the district court erroneously conducted the trial and instructed the jury on the basis of a superseded first degree murder statute. We reaffirm our original decision. The alleged irregularities or errors cannot be availed of on appeal because they were not objected to at the time of occurrence,
Our rule requiring a contemporaneous objection to preserve a criminal trial error for review conforms generally with
The contemporaneous objection rule has two purposes: (1) to put the trial judge on notice of the alleged irregularity so that he may cure the problem and (2) to prevent a defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by objection. State v. Morris, 82-KA-0549, rendered this day; State v. Dupre, 339 So.2d 10 (La.1976); State v. Marcell, 320 So.2d 195 (La.1975).
Our rules of criminal procedure do not contain a provision such as
Every person is guaranteed an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.
Moreover, the alleged errors in the present case do not justify the creation of another special exception to the contemporaneous objection requirement. Because the penalty of death is qualitatively different from any other sentence, capital cases receive heightened scrutiny from this court and we conduct an independent review, regardless of the failure of defense counsel to object to possible error, to determine whether any improper factors contributed to the jury‘s recommendation of the death penalty. State v. Sonnier, 379 So.2d 1336, 1371 (La.1980) (on rehearing); See, State v. David, 425 So.2d 1241 (La.1983), State v. Watson, 423 So.2d 1130 (La.1982), 82-KA-2227; See also, State v. Culberth, 390 So.2d 847 (La.1980). Because a conviction based on a record devoid of evidence of the crime
Although the idea of plain error is a loosely defined concept, the requirement that the defendant must have suffered substantial prejudice to obtain relief seems to run through every formulation. In an early case, the United States Supreme Court described the concept of plain error as errors which are “obvious, or [which] otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.” United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936). However, courts have given “plain error” various meanings including “error both obvious and substantial,” “serious and manifest errors,” and “grave errors which seriously affect substantial rights of the accused.” See Wright, Federal Practice and Procedure, Criminal 2d, § 856 at 336 and authorities cited therein; See also, Moore‘s Federal Practice, Rules of Criminal Procedure, § 52.02[2]. Some courts have adopted a stricter approach and utilize the notion of plain error only when it is necessary to prevent a clear miscarriage of justice. See, e.g., United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981).
Consequently, it is unlikely that plain error review in the present case, even if granted, would warrant relief because the defendant has failed to demonstrate that he was substantially prejudiced by the claimed irregularities.
The defendant asserts that the failure of the trial court to correctly instruct the jury on first and second degree murder may have caused it to return a murder instead of a manslaughter verdict. The jury was correctly instructed and told that manslaughter was a permissible verdict, however. If the jurors had been convinced beyond a reasonable doubt that the homicide was committed without specific intent, they were aware that a manslaughter verdict could have been returned. We see no reason to believe that the jury‘s murder verdict was based on anything other than its conviction that the state had proved a specific intent slaying, and its finding in this regard is supported by the evidence.
The defendant also contends that the case should not have been tried as a capital murder case. He alleges that several jurors were therefore erroneously excluded from service because of their voiced objections to the death penalty, and, hence, that the jury finally empaneled was more likely to convict. Even assuming that the case should not have been tried as a first degree murder case, we decline to reverse the defendant‘s conviction. Certainly, the argument has been made that an improperly “death-qualified” jury is more likely to vote to convict. Also, some have argued that such juries may deprive a defendant of a jury drawn from a cross section of the community. See, e.g., State v. Miles, 339 So.2d 735, 740-41 (La.1976) (Tate, J., concurring). However, studies conducted on the voting tendencies of such juries have been tentative and fragmentary. See Witherspoon v. Illinois, 391 U.S. 510, 517, 88 S.Ct. 1770, 1774, 20 L.Ed.2d 776 (1968); State v. David, supra. And the defendant has made no showing whatsoever that this alleged impropriety deprived him of a jury drawn from a fair cross section of the community. Therefore, while the door remains open to future arguments based on empirical evidence, we decline to reverse this conviction on an unproven assertion that a “death qualified” jury is more apt to convict than one including persons unalterably opposed to the death penalty. State v. David, supra, at n. 1.
The defendant was afforded due process of law in that he was given adequate notice of the crime for which he was
In State v. Williamson, 389 So.2d 1328 (La.1980), we allowed review of an erroneous jury instruction despite the defendant‘s failure to object at trial. We express no opinion on whether this court will again grant review under the unique facts of Williamson, but leave that as an open question. However, Williamson should not be construed as authorizing appellate review of every alleged constitutional violation and erroneous jury instruction urged first on appeal without timely objection at occurrence. This court has not created or recognized a plain error rule of general application.
Our original opinion and decree are affirmed.
ORIGINAL DECISION AFFIRMED.
LEMMON, J., concurs and assigns reasons.
BLANCHE, J., dissents and would grant defendant a new trial.
CALOGERO, J., dissents and will assign reasons.
LEMMON, Justice, concurring.
This case is vastly different from State v. Williamson, 389 So.2d 1328 (La.1980).
In Williamson, the defendant was charged with attempted first degree murder; the judge erroneously instructed the jury (without objection) that attempted first degree murder required only a specific intent to kill (when legislation, effective shortly before the offense, added the requirement of the existence of an enumerated aggravated circumstance) and that the responsive verdict of attempted second degree murder required only a finding of attempted murder during the commission of certain felonies; and the jury returned a responsive verdict which made absolutely no sense under the evidence and the instructions. I voted to reverse the conviction, despite the lack of objection to an error which was contributed to by the judge, the prosecutor and the defense attorney, because the jury instruction (erroneously stating the essential elements of the pertinent crimes) was so prejudicial as to offend basic fairness concepts. While I noted that few jury instructions are so prejudicial as to constitute plain error, this instruction clearly misled the jury into a verdict so illogical and inexplainable that this court could not affirm the conviction simply because the jury reached the right result on the wrong instructions. While the verdict would have been justified under the evidence and the new law (of which the jury was unaware), the judge never outlined to the jury the elements of any crime by any name which fit both the facts and the verdict which was returned.
In the present case, the defendant was charged with first degree murder; the judge‘s instructions defined first degree murder by listing all of the essential elements of second degree murder; the evidence
On original hearing, we simply “corrected” the verdict to supply the correct name for the crime on which the jury was correctly charged and which the evidence proved. Because the defendant suffered no prejudice, our original judgment was correct.
CALOGERO, Justice, dissenting.
Defendant was charged and tried for the capital offense of first degree murder, simply specific intent killing, even though the first degree and second degree murder statutes had been changed twelve days before the crime to restrict first degree murder to specific intent killing during the perpetration or attempted perpetration of designated felonies, or to three other limited instances,1 and to define second degree murder as specific intent killing or felony murder. At the time that the crime was committed, defendant could properly be charged for specific intent killing under only the second degree murder statute.
Had Thomas been charged and tried under the proper law, he would have been charged with the non-capital crime of second degree murder; the State would not have been able to exclude from the jury persons with conscientious scruples who would automatically vote against the imposition of capital punishment. This defendant, in my view, was thus seriously prejudiced. This is a case of first impression; it is not the close Witherspoon issue in which a defendant claims that even with the challenges properly applied in a capital case, he has been denied a jury from a cross-section of the community.
Defendant‘s contention relating to the composition of the jury goes one step further than the Witherspoon argument. Defendant contends that the State, in a case in which challenges were not proper, was permitted to successfully challenge for cause several prospective jurors on the basis that they could not impose the death penalty. The majority opinion discounts defendant‘s assertion because of a lack of empirical data concerning the voting tendencies of a “death-qualified” jury. Empirical evidence or not, the State received the benefit of a “death-qualified” jury in a case in which they were not so entitled. Persons with conscientious scruples against imposing the death penalty should not have been excluded. That constituted error. In those circumstances, I would declare that the State must produce the “empirical data” to prove that a “death-qualified” jury was not more likely to convict. Absent such a showing, such error can hardly be deemed harmless.
Concerning the other major issue in the case, I agree that this case is distinguishable from Williamson for the reasons expressed
For the foregoing reasons, I respectfully dissent.
Notes
(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.