WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT,
PARISH OF ORLEANS
granted this application to determine whether guilty of
simple kidnapping is a responsive verdict to a charge of
second degree kidnapping. Finding that it is not enumerated
among the legislatively authorized responsive verdicts in La.
C.Cr.P. art. 814, and further that it is not a lesser and
included offense in accordance with La. C.Cr.P. art. 815, we
set aside defendant's convictions for simple kidnapping,
and we remand to the trial court to enter a post-verdict
judgment of acquittal on these charges.
was indicted with five counts of second degree kidnapping and
three counts of second degree murder. The evidence
established that defendant, Donald Johnson, and Andrea Price
arrived at Troy Leslie's residence on Devine Street in
New Orleans on January 12, 2012. Their plan was to lure those
persons present into the garage with the promise of
marijuana, hold them there at gunpoint, and then find and
steal a safe. Some of the victims were successfully lured to
the garage, while others were violently forced there by
Johnson. Ultimately, defendant held five persons in the
garage at gunpoint while Johnson searched for the safe. In
the course of the robbery, Johnson shot several of the
victims, killing three and maiming a fourth. Defendant and
Johnson loaded the safe into a stolen vehicle and fled with
Price. They crashed the vehicle while fleeing from police,
and Johnson was killed in the ensuing shootout. The safe was
recovered from the vehicle, and Price testified against
defendant at trial.
was found guilty of five counts of simple kidnapping and two
counts of negligent homicide. The court of appeal en banc and
on rehearing affirmed the convictions for simple kidnapping
because it found that guilty of simple kidnapping is a valid
responsive verdict to a charge of second degree kidnapping.
The court of appeal first noted that it previously reached
the same conclusion in State v. Vargas-Alcerreca,
12-1070 (La.App. 4 Cir. 10/2/13), 126 So.3d 569, writ
denied, 13-2588 (La. 4/17/14), 138 So.3d 625. The court
of appeal also found that this court had
"implicitly" reached the same conclusion, and the
court of appeal stated that its determination is
"consistent with the long-standing rule"
established by this court in State ex rel. Elaire v.
Blackburn, 424 So.2d 246, 252 (La. 1982), in which a
plurality of this court stated, "when the defendant
fails to interpose a timely objection to a legislatively
responsive verdict, this court will not reverse the
conviction if the jury returns such a verdict, whether or not
that verdict is supported by the evidence, as long as the
evidence is sufficient to support the offense charged."
Finally, the court of appeal distinguished State v.
Graham, 14-1801 (La. 10/14/15), 180 So.3d 271, on the
basis that it is a distinctive case, involving a unique set
of circumstances, that presented an unusual procedural
posture, and involved fundamental unfairness.
Criminal Procedure art. 815 provides:
In all cases not provided for in Article 814, the following
verdicts are responsive:
(2) Guilty of a lesser and included grade of the offense even
though the offense charged is a felony, and the lesser
offense a misdemeanor; or
(3) Not Guilty.
Criminal Procedure art. 814 provides no legislatively
authorized responsive verdicts for a charge of second degree
kidnapping, and therefore Article 815 necessarily applies by
its plain language.
and included offenses are those in which all of the essential
elements of the lesser offense are also essential elements of
the greater offense charged. See State v.
Porter, 93-1106 (La. 7/5/94), 639 So.2d 1137; State
v. Dufore, 424 So.2d 256 (La.1982); State ex rel.
Elaire v. Blackburn, 424 So.2d 246 (La.1982). This court
has further clarified:
Stated another way, "if any reasonable state of facts
can be imagined wherein the greater offense is committed
without perpetration of the lesser offense, a verdict for the
lesser cannot be responsive." State v. Simmons,
422 So.2d 138, 142 (La.1982) (quoting State v. Poe,
214 La. 606, 38 So.2d 359, 363 (1948) (on rehearing)).
Consequently, evidence which would support a conviction of
the charged offense would necessarily ...