Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 05-12-2021
Case Style:
STATE OF LOUISIANA Vs. DONALD BROUSSARD
Case Number: KA -0020-0303
Judge: Van H. Kyzar
Court: STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
Plaintiff's Attorney: M. Bofill Duhé
District Attorney
W. Claire Howington
Assistant District Attorney
Defendant's Attorney:
Description:
Lake Charles, Louisiana - Criminal defense attorney represented Donald Broussard, with one count of manslaughter, and one count of aggravated obstruction of a highway.
On March 17, 2017, Defendant was charged by indictment with one count of
manslaughter, a violation of La.R.S. 14:31, and one count of aggravated obstruction
of a highway, a violation of La.R.S. 14:96. Before the commencement of
Defendant’s jury trial, the State severed the charge of aggravated obstruction of a
highway and proceeded to trial on the manslaughter charge only. On October 18,
2018, the jury returned an 11-1 verdict for the lesser included offense of negligent
homicide.
Defendant appealed his conviction, arguing that the evidence was insufficient
to find his actions were an immediate and contributory cause of the victim’s death
and that the sentence imposed was excessive. This court, on rehearing, recognized
as an error patent that the non-unanimous jury verdict was unconstitutional pursuant
to the United States Supreme Court’s holding in Ramos v. Louisiana, 590 U.S. __,
140 S.Ct. 1390 (2020). State v. Broussard, 19-792 (La.App. 3 Cir. 6/12/20), 299
1 While La.Code Crim.P. art. 912 B(3) provides that the state “may appeal” adverse
judgments or rulings on a motion to quash an indictment or any count thereof based on a plea of
double jeopardy, we have addressed the issue on application for supervisory writs exercising our
discretionary jurisdiction. State v. Clues-Alexander, 17-883 (La.App. 3 Cir. 2/2/18) (unpublished
opinion); State v. Alexander, 17-511 (La.App. 3 Cir. 9/8/17) (unpublished opinion); State v. Sweat,
12-492 (La.App. 3 Cir. 6/6/12) (unpublished opinion).2
So.3d 176. Accordingly, this court reversed Defendant’s conviction for negligent
homicide and remanded the case for a new trial. Id.
On July 6, 2020, the State filed an amended bill of information, charging
Defendant with one count of negligent homicide, a violation of La.R.S. 14:32, and
one count of aggravated obstruction of a highway, a violation of La.R.S. 14:96.
Thereafter, on September 2, 2020, Defendant filed a “Motion to Quash Count 2 of
the Bill of Information [In] Violation of the Double Jeopardy Clause.” Defendant
alleged that during his first trial for manslaughter, the State relied upon the
aggravated obstruction of a highway charge as the underlying felony committed by
Defendant when the victim was killed. By finding him guilty of the responsive
verdict of negligent homicide, Defendant argued, the jury rejected the State’s claim
that the homicide occurred while Defendant committed aggravated obstruction of a
highway. Accordingly, Defendant requested the charge of aggravated obstruction
of a highway be quashed on the grounds of double jeopardy. At a hearing held
October 12, 2020, the trial judge granted the motion to quash.
On October 15, 2020, the State filed a notice of intent to apply for supervisory
writs, a request for stay, a request for return date, and a motion for transcripts. The
trial court set the return date for November 12, 2020, ordered the matter stayed until
the State’s writ application was resolved, and ordered the court reporter to provide
the parties with the October 12, 2020 transcript. On November 13, 2020, this court
received the State’s writ application, which was timely post-marked November 12,
2020.
We set forth the pertinent facts of the case here, as the previous decision of
this court on rehearing did not do so, only addressing the constitutionality of the
verdict as non-unanimous. On July 8, 2016, the victim, Rakeem Blakes, rear-ended
a vehicle being driven by Defendant at a location near Highway 90 and Ambassador 3
Caffery Parkway.2
The victim immediately left the scene, causing Defendant to
follow him in his car, while calling 911 and relaying the victim’s license plate
number. The dispatcher advised Defendant to return to the scene of the accident,
but he did not do so. Various witnesses testified that both vehicles proceeded
through traffic at high rates of speed. A witness testified that the victim looked
scared as he was driving and that he looked back over his shoulder. Another witness
agreed that the victim looked scared. In Iberia Parish, approximately nine miles
away from the original scene, the victim apparently lost control of his vehicle and
drove head-on into an eighteen-wheeler. The victim died, and his vehicle caught
fire. Defendant stopped at the second scene; various witnesses described him as
appearing to be angry.
At the October 12, 2020 hearing on the motion to quash, Defendant argued
that at his first trial, the State relied upon the aggravated obstruction of a highway
charge to prove manslaughter. He asserted that the jury’s return of a verdict of
negligent homicide revealed its rejection of the State’s argument. Therefore,
Defendant stated, “the issue as to aggravated obstruction of a highway . . . has
already been litigated . . . [and] rejected[.]” In response, the State urged that the
doctrine of collateral estoppel, as it relates to double jeopardy, requires a high level
of certainty that the previous jury based its verdict solely on the issue in dispute and
not on any other ground. In the present case, asserted the State, it is not possible to
determine on what grounds the jury relied upon in reaching its verdict of guilty of
the lesser offense of negligent homicide.
Further contesting the State’s argument at hearing, Defendant argued that the
temporal and causal elements discussed by the State were of “no moment.” The only
2
The record in Defendant’s previous appeal was made an exhibit to this writ application.4
pertinent issue, Defendant asserted, was whether or not the jury heard evidence of
aggravated obstruction of a highway and “foreclosed on it.” Defendant asserted that
if the State had proved its case of aggravated obstruction of a highway, the jury
would have found Defendant guilty of manslaughter as charged. Because the jury
heard evidence of aggravated obstruction of a highway and rejected that evidence in
returning a lesser verdict, Defendant asked the trial judge to quash count two.
After hearing the above arguments, the trial court issued the following ruling:
BY THE COURT:
The record shows that the State presented
predominantly aggravated obstruction of a highway as one
of the requisite elements for the crime of vehicular
negligence – negligent homicide, okay?
BY MS. HOWINGTON:
Well, the original charge was manslaughter, Your
Honor.
BY THE COURT:
In looking at the jury instructions and the jury voir
dire and the testimony given here, they seem to be focused
on the aggravated obstruction of a highway. It was well
litigated, and the jury rejected it.
So I’m going to grant your motion. I find double
jeopardy.
. . . .
Motion to quash is granted.
OPINION
The State contends the trial court erred in granting Defendant’s motion to
quash. As there are no factual disputes to resolve in this writ application, only the
trial court’s application of the legal doctrine of collateral estoppel, we review the
trial court’s ruling de novo. State v. Thibodeaux, 19-609 (La.App. 4 Cir. 12/4/19),
286 So.3d 513. 5
The supreme court has stated the following regarding collateral estoppel:
The Double Jeopardy Clause of the Fifth Amendment, however,
also incorporates the doctrine of collateral estoppel. This component
of the Double Jeopardy Clause was recognized by the United States
Supreme Court in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25
L.Ed.2d 469 (1970). There, defendant was accused of being part of a
group of masked men who robbed six men playing poker. The
defendant was subsequently tried for the armed robbery of one of the
card players, Donald Knight, and was acquitted after a jury trial. The
state then brought petitioner to trial six weeks later, over his objections,
for the armed robbery of another of the poker players who was robbed
that night. Defendant was convicted at the conclusion of this second
trial.
The Supreme Court, applying the doctrine of collateral estoppel
it found implicit in the Double Jeopardy Clause, reversed defendant’s
conviction and held the acquittal in defendant’s first trial precluded the
state from charging him for the second offense. The Court stated that
collateral estoppel “means simply that when an issue of ultimate fact
has once been determined by a valid and final judgment, that issue
cannot again be litigated between the same parties in any future
lawsuit.” Id. at 443, 90 S.Ct. at 1194. The Court also noted that, in
criminal cases, the rule of collateral estoppel
is not to be applied with the hypertechnical and archaic
approach of a 19th century pleading book, but with realism
and rationality. Where a previous judgment of acquittal
was based upon a general verdict, as is usually the case,
this approach requires a court to “examine the record of a
prior proceeding, taking into account the pleadings,
evidence, charge, and other relevant matter, and conclude
whether a rational jury could have grounded its verdict
upon an issue other than that which the defendant seeks to
foreclose from consideration.”
Id. at 444, 90 S.Ct. at 1194 (internal citations omitted). The Court
concluded that defendant could not be prosecuted a second time
because, to convict defendant, the second jury would have to reach a
conclusion directly contrary to that reached by the first jury.
This court has recognized Ashe’s principle that collateral
estoppel “is anchored in the Fifth Amendment guarantee against double
jeopardy. In Louisiana, the application of the doctrine has been limited
‘to those cases where it is required by Ashe v. Swenson . . .’ ” State v.
Blache, 480 So.2d 304, 306 (La.1985), citing State v. Knowles, 392
So.2d 651, 655 (La.1981); State v. Doucet, 359 So.2d 1239, 1248
(La.1978). Thus, while the Louisiana protection against double
jeopardy is broader than its federal counterpart, we apply the federal
test of Ashe where collateral estoppel is concerned.6
State v. Cotton, 00-850 (La. 1/29/01), 778 So.2d 569, 573-74.
Reviewing the case de novo, we find the collateral estoppel doctrine does not
apply in this case since the jury’s non-unanimous verdict was not a valid judgment.
In State v. Goodley, 423 So.2d 648, 651 (La.1982), the supreme court held that when
a “non-waivable defect, such as an illegal verdict, prevents a jury from delivering
either a conviction or acquittal at a defendant’s first trial, that defendant cannot avail
himself of the plea of double jeopardy.”3
The illegal verdict at issue in Goodley was
a non-unanimous jury verdict in a capital case. State v. Goodley, 398 So.2d 1068
(La.1981). The supreme court reasoned that an illegal verdict is equivalent to no
verdict, either of conviction or acquittal. Goodley, 423 So.2d at 651. Similar to
Goodley, this court found that the non-unanimous jury verdict returned in the present
case was illegal pursuant to the United States Supreme Court’s holding in Ramos.
Broussard, 299 So.3d 176. Thus, like the jury’s verdict in Goodley, the verdict in
the present case is considered as the equivalent of no verdict, either of conviction or
acquittal.
In State v. Self, 00-633, p. 1 (La.App. 3 Cir. 11/2/00), 772 So.2d 337, a panel
of this court considered the defendant’s plea of double jeopardy where he faced
retrial after his original conviction by an 11-1 jury verdict, for the crime of
aggravated rape of a child under the age of twelve years, was reversed as an illegal
3 While holding that “the constitutional protection against double jeopardy does not in and
of itself prohibit Goodley’s retrial for first degree murder” the court affirmed the motion to quash
on grounds “that to retry Goodley for the crime of first degree murder would be inconsistent with
the right to appeal in Louisiana.” Id. at 651.7
verdict. 4
In concluding that double jeopardy did not prohibit a retrial of the
aggravated rape charge, this court stated the following:5
The Double Jeopardy Clause of the United States Constitution’s
Fifth Amendment, applicable to the states through the Fourteenth
Amendment, provides that no person shall “be subject for the same
offense to be twice put in jeopardy of life or limb.” See also La. Const.
art. 1 § 15; La.Code Crim.P. art. 591 et seq. The Louisiana Supreme
Court has held that when a non-waivable defect, such as an illegal
verdict, fails to result in either a conviction or acquittal at the
defendant’s first trial, the double jeopardy provision of the Fifth
Amendment does not bar retrial of the defendant. State v. Mayeux, 498
So.2d 701 (La.1986); State v. Goodley, 423 So.2d 648 (La.1982). See
United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543
(1971). In such cases, it is as if the jury in the prior proceeding failed
to reach a decision. Goodley, 423 So.2d 648. Therefore, we find that
the State’s prosecution of the defendant for forcible rape, and the trial
court’s acceptance of the defendant’s guilty plea for attempted forcible
rape after remand from the appellate court, were not violations of the
principles of double jeopardy as provided by the United States
Constitution, Louisiana Constitution, or La.Code Crim.P. art. 591 et
seq.
Id. at 338 (footnote omitted).
Since the doctrine of collateral estoppel is anchored in the Fifth Amendment
guarantee against double jeopardy, we conclude that as with double jeopardy, the
jury’s return of an invalid verdict in the present case prohibits Defendant from
availing himself of the protection of collateral estoppel. Accordingly, the trial court
erred in granting the motion to quash the present count charging aggravated
obstruction of a highway based on the plea of double jeopardy resulting from the
illegal verdict rendered in the previous manslaughter trial.
4
Defendant was tried for conduct occurring in 1995. Prior to its amendment in 1997,
La.R.S. 14:42 provided for a possible death penalty and required a unanimous verdict. After its
amendment, if the death penalty was not sought by the district attorney, a 10-2 jury verdict was
permissible pursuant to La.Code Crim.P. art. 782.
5
Defendant moved to quash the indictment after remand, which was denied. The charge
was amended to forcible rape thereafter and the jury deadlocked at the retrial. Defendant
ultimately pled guilty to attempted forcible rape but reserved rights to appeal pre-plea errors.8
Additionally, based on the specifics of the verdict in this case, we find the
Double Jeopardy Clause to be inapplicable on other grounds as well. In State v.
Langley, 10-969, p. 12 (La.App. 3 Cir. 4/6/11), 61 So.3d 747, 757, writ denied, 11-
1226 (La. 1/20/12), 78 So.3d 139, cert. denied, 568 U.S. 841, 133 S.Ct. 148 (2012)
(quoting State v. Ingram, 03-1246, pp. 3-4 (La.App. 5 Cir. 10/28/04), 885 So.2d 714,
716-17, writ denied, 04-3135 (La. 4/1/05), 897 So.2d 600), this court noted the
following jurisprudence regarding the determination of whether an issue was
“necessarily decided” in a prior trial:
The Fifth Amendment’s Double Jeopardy Clause
protects against successive prosecutions following
acquittal or conviction, as well as multiple punishments
for the same offense. See also, LSA-Const. art. I, § 15;
La.C.Cr.P. art. 591 et seq. The collateral estoppel
component of the Double Jeopardy Clause prohibits the
state from relitigating an issue of ultimate fact that has
been determined by a valid and final judgment. Ashe v.
Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25
L.Ed.2d 469 (1970); State v. Cotton, 00-0850, pp. 5-6
(La.1/29/01), 778 So.2d 569, 574, reh’g granted in part,
on other grounds, 00-0850 (La.4/20/01), 787 So.2d 278.
A fact is considered “ultimate” if it is necessary to a
determination of the defendant’s criminal liability. State
v. Miller, 571 So.2d 603, 607 (La.1990).
Collateral estoppel bars relitigation of only those
facts necessarily determined in the first trial. United States
v. Brackett, 113 F.3d 1396, 1398 (5th Cir.1997), cert.
denied, 522 U.S. 934, 118 S.Ct. 341, 139 L.Ed.2d 265
(1997). Where a fact is not necessarily determined in a
previous trial, the state is not barred from reexamining the
issue. Id. Accordingly, the first step in resolving a
collateral estoppel claim is to discern which facts were
“necessarily determined” in the first trial. Id.
The courts have placed the burden “on the
defendant to demonstrate that the issue whose relitigation
he seeks to foreclose was actually decided in the first
proceeding.” Dowling v. United States, 493 U.S. 342, 350,
110 S.Ct. 668, 673, 107 L.Ed.2d 708 (1990). The
application of this test to criminal cases is complicated by
the fact that an acquittal by general verdict does not
specify the facts “necessarily decided” by the jury.
Therefore, to determine which facts were “necessarily 9
decided” by the general acquittal in the first trial, it is
necessary to examine the record of the prior proceeding in
order to determine “ ‘whether a rational jury could have
grounded its verdict upon an issue other than that which
the defendant seeks to foreclose from consideration.’ ”
Ashe v. Swenson, 397 U.S. at 444, 90 S.Ct. at 1194
(citations omitted).
Langley argued to this court that the doctrine of collateral estoppel prevented
him from being retried for second degree murder. Id. at 756. In Langley’s previous
trial for first degree murder, the jury returned a verdict for the lesser and included
offense of second degree murder. Because Langley had conceded that he killed the
victim and conceded that the victim was less than twelve years old, Langley argued
that the jury’s return of a finding of second degree murder meant that it found that
he did not have the specific intent to kill. Id. Consequently, Langley argued, he
could not be re-prosecuted under a specific intent theory of second degree murder.
After citing the jurisprudence set forth above, this court rejected Langley’s collateral
estoppel claim, stating the following:
When a lesser included offense to the crime charged is returned
by a jury it is not always possible to determine why that verdict was
reached. It is possible that the jury convicted the defendant of specific
intent second degree murder. It is possible that the jury verdict was
based on a jury finding under the felony-murder rule, and the jury
determined there was no specific intent to kill. It is equally plausible
that, given the nature of the case, the verdict was, in fact, a compromise
verdict. Regardless of the jury’s thought process in this particular case,
clearly the argument that the issue of specific intent was “necessarily
determined” is unsupported. The defendant has not carried his burden
of proving that the element of specific intent was actually decided in
the previous trial.
Id. at 757-58.
Langley sought and was denied federal habeas relief by a federal district court
in Langley v. Prince, 2:13-CV-2780, 2016 WL 1383466 (W.D. La. April 6, 2016).
Initially, the United States Fifth Circuit Court of Appeals reversed the district court,
finding: 10
The State of Louisiana is constitutionally prohibited from
charging Langley with any crime having as an essential element proof
beyond a reasonable doubt of Langley’s specific intent to kill or to
inflict great bodily harm at the moment he killed J.G.
Langley v. Prince, 890 F.3d 504, 531 (5th Cir. 2018).
The Fifth Circuit found that the jury in Langley’s second trial acquitted Langley of
any crime having an element of specific intent to kill or to inflict great bodily harm.
On October 12, 2018, however, the Fifth Circuit granted the State’s petition
for rehearing en banc. Langley v. Prince, 905 F.3d 924 (5th Cir. 2018). On
rehearing, the Fifth Circuit vacated its previous opinion and affirmed the district
court’s denial of habeas relief. Langley v. Prince, 926 F.3d 145 (5th Cir. 2019), cert.
denied, 590 U.S. __, 140 S.Ct. 2676 (2020). Although much of the Fifth Circuit’s
opinion is devoted to the analysis utilized when a federal court reviews a state court’s
application of state law, the court’s application of the collateral estoppel doctrine
provides guidance for the case at hand.
On rehearing, the Fifth Circuit noted that the Supreme Court has applied the
issue preclusion set forth in Ashe in only three other cases, of which, including Ashe,
all involved blanket acquittals.
6
Thus, the Fifth Circuit opined (but found it
unnecessary to conclusively decide) that Ashe may not be extended to cases wherein
a defendant is convicted of a lesser and included offense:
Therefore, none of these cases held issue-preclusion principles
apply to a conviction. We asked the parties to identify any case
extending Ashe to cases involving a conviction. The parties could not
find a single Supreme Court case even hinting at that result. That’s
unsurprising. As the Supreme Court recently acknowledged, “Ashe’s
protections apply only to trials following acquittals.” Currier [v.
Virginia,__ U.S. __], 138 S. Ct. [2144,] 2150 [2018] (emphases added).
Thus, there is no “clearly established Federal law, as determined by the
Supreme Court,” explaining whether and to what extent a state court
should find issue preclusion following a conviction.
6
Turner v. Arkansas, 407 U.S. 366, 369-70, 92 S.Ct. 2096 (1972) (per curiam); Harris v.
Washington, 404 U.S. 55, 57, 92 S.Ct. 183 (1971) (per curiam); Simpson v. Florida, 403 U.S. 384,
386, 91 S.Ct. 18 (1971) (per curiam).11
. . . .
. . . A fairminded jurist could conclude the rule clearly established in
Ashe does not apply to a conviction rather than a general acquittal.
When a jury issues a general acquittal, it necessarily determines at least
something in the defendant’s favor. It might be possible to identify that
something and preclude the government from submitting it to a second
jury. That task is obviously different—and more difficult—when the
jury convicts the defendant on at least one count. In the face of a
conviction on one count, it is not clear which issues if any the jury
determined in the defendant’s favor on that same count.
. . . The state court recognized Ashe’s applicability to a “general
acquittal.” Langley IV, 61 So. 3d at 757 (citing Ashe, 397 U.S. at 444,
90 S.Ct. 1189). By contrast, where the jury returns a conviction on “a
lesser included offense,” the state court found it’s “not always possible
to determine” which issues if any should be precluded under Ashe. Ibid.
The state court found it “possible” the jury made one of three
determinations: (1) Langley was guilty of specific-intent murder, (2)
Langley was guilty of something less than specific-intent murder, or (3)
the jury avoided the specific-intent issue by rendering a “compromise
verdict.” Ibid. In the state court’s view, Langley’s argument that the
jury found (2) to the exclusion of (1) and (3) was “clearly . . .
unsupported.” Id. at 758.
Even if we thought the state court committed “clear error” by so
holding, we still could not grant relief. [White v.] Woodall, 572 U.S.
[415,] 419, 134 S.Ct. 1697 [(2014)]. After all, neither Ashe nor any
other Supreme Court precedent mandates that a lesser-included-offense
conviction—or to use the dissent’s preferred terminology, an “implicit
acquittal”—be given issue-preclusive effect. And Supreme Court
precedent does mandate caution in finding Ashe issue preclusion where
the jury could have rendered a “compromise” or “lenity” verdict. See
United States v. Powell, 469 U.S. 57, 65-66, 105 S.Ct. 471, 83 L.Ed.2d
461 (1984); Standefer v. United States, 447 U.S. 10, 22-23, 100 S.Ct.
1999, 64 L.Ed.2d 689 (1980); accord Bravo-Fernandez v. United
States, –– U.S. ––, 137 S. Ct. 352, 363-64, 196 L.Ed.2d 242 (2016)
(noting “the jurors in this case might not have acquitted on [certain]
counts absent their belief that the . . . convictions [on other counts]
would stand”). Therefore, a fairminded jurist could find that Ashe’s
rule regarding general acquittals does not require issue preclusion for
Langley’s conviction.
Id. at 158-59 (footnote omitted).
The Fifth Circuit noted that “[u]nder Louisiana law, ‘the jury must be given
the option to convict the defendant of the lesser offense, even though the evidence
clearly and overwhelmingly supported a conviction of the charged offense.’” Id. at 12
161 (quoting State v. Porter, 93-1106 (La. 7/5/94), 639 So.2d 1137, 1140). The
court noted that the jurors in Langley’s prior trial were repeatedly told that second
degree murder and manslaughter were the responsive verdicts to first degree murder.
Consequently, the Fifth Circuit concluded, “a rational jury could have credited [the]
overwhelming evidence and still—in accordance with the instructions and the law—
returned a verdict for the lesser-included offense of second-degree specific-intent
murder.” Id.
Similarly, the jury in the present Defendant’s trial was instructed of the
responsive verdicts that could be rendered:
Thus, if you are convinced beyond a reasonable doubt that the
Defendant is guilty of the offense charged, your verdict should be
guilty. If you are not convinced beyond a reasonable doubt the
Defendant is guilty as charged of Manslaughter, then you may return a
verdict for the lesser offense of Negligent Homicide.
Negligent Homicide is a killing of a human being by criminal
negligence.
Whoever commits the crime of Criminal Negligence shall be
imprisoned with or without hard labor for not more than five years,
fined not more than five thousand dollars, or both.
Thus, to convict this defendant of Negligent Homicide, you must
find that:
(1) There is a killing of a human being, Rakeem
Blakes; and
(2) That the killing was by criminal negligence.
If the State has failed to prove beyond a reasonable doubt that the
defendant is guilty of either: Manslaughter or Negligent Homicide,
then the form of your verdict should be not guilty.
Therefore, the verdicts that may be returned are:
(1) Guilty of Manslaughter
(2) Guilty of Negligent Homicide
(3) Not Guilty13
Although the jury was not specifically instructed that it could return any
responsive verdict listed on the verdict sheet even if it believed the State had proved
every element of the offense charged, the instructions given “appropriately informed
the jury of its ability to return a responsive verdict[.]” See State v. Coward, 18-951,
p. 13 (La.App. 3 Cir. 6/5/19) (unpublished opinion). In cases wherein a defendant
has requested a specific jury instruction informing the jury of its ability to return a
responsive verdict even if it believed the State proved the charged offense, the courts
have found that such an instruction would “require, at the very least, qualification
and certainly explanation.” State v. Sharp, 35,714, p. 20 (La.App. 2 Cir. 2/27/02),
810 So.2d 1179, 1192, writ denied, 02-1736 (La. 6/6/03), 845 So.2d 1081. Thus,
the courts have found that instructions like the one given in the present case
adequately comply with Porter’s requirement that the jury be given an opportunity
to return a compromise verdict. See Id. As the Fifth Circuit found in Langley, a jury
in Louisiana can find a defendant overwhelmingly guilty of the charged offense and
still choose to convict of a responsive verdict.
Therefore, under the law and instructions applicable to Defendant’s trial, the
jury could have found Defendant overwhelmingly guilty of manslaughter and still,
nonetheless, have chosen to convict him of the responsive verdict of negligent
homicide. Furthermore, as the State argues in its writ application, the jury could
have also found that Defendant committed aggravated obstruction of a highway, but
that the commission of that offense was not a contributory factor in the victim’s
death. In Langley, 926 F.3d at 166, the Fifth Circuit found that the existence of
multiple possibilities for the jury’s verdict prohibited the court from concluding that
the issue of specific intent was essential to the verdict:
That means the jury could return its lawful second-degree murder
conviction after (a) finding specific intent, (b) finding no specific intent,
or (c) declining to consider the question of specific intent. To infer why 14
the Langley II jury convicted him only on second-degree murder
“would require speculation into what transpired in the jury room,” and
would require us to “scrutinize” the jury’s “failures to decide” rather
than its actual decision. Yeager [v. United States], 557 U.S. [110,] 122,
129 S.Ct. 2360 [(2009)]. We cannot do that. The existence of three
possibilities for the actual verdict means the issue of specific intent was
not essential to the judgment. And since there could be no preclusion
even under the broader civil preclusion rules, there certainly can be no
issue preclusion under Ashe.
Likewise, the existence of multiple possibilities for the jury’s verdict in
Defendant’s first trial renders any attempt to determine whether or not the jury found
he committed aggravated obstruction of a highway a speculative endeavor at best.
As in Langley, the existence of multiple possibilities for the jury’s verdict in
Defendant’s first trial means the issue of his commission of aggravated obstruction
of a highway was not essential to the jury’s verdict. Consequently, we find the trial
court erred in finding that the State was collaterally estopped from charging
Defendant with aggravated obstruction of a highway before his second trial.
Outcome: For the reasons assigned, the State’s writ application is granted and made peremptory, the ruling of the trial court granting the Defendant’s motion to quash is
reversed and the case is remanded to the trial court for further proceedings consistent herewith.
Plaintiff's Experts:
Defendant's Experts:
Comments: