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State v. Price

Supreme Court of Louisiana

June 27, 2018

STATE OF LOUISIANA
v.
JUBBARD PRICE

          ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

          PER CURIAM.

         We 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.

         Defendant 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.

         Defendant 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.

         Code of Criminal Procedure art. 815 provides:

In all cases not provided for in Article 814, the following verdicts are responsive:
(1) Guilty;
(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.

         Code of 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.

         Lesser 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 ...

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