                              Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #050


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 18th day of October, 2017, are as follows:




BY CLARK, J.:


2016-K -1160      STATE OF LOUISIANA v. SKYLAR FRANK (Parish of Allen)

                  Accordingly, we take this opportunity to make clear that the
                  protections against double jeopardy mandated by the federal
                  constitution, as restated in this state’s constitution, fall
                  within the analytical framework set forth in Blockburger and
                  Louisiana courts need only apply that framework in analyzing
                  questions of double jeopardy. Because no double jeopardy
                  violation is apparent here under Blockburger, we reverse in part
                  the court of appeal and reinstate defendant’s conviction and
                  sentence for attempted felony carnal knowledge of a juvenile.
                  REVERSED IN PART
10/18/17


                      SUPREME COURT OF LOUISIANA


                                   No. 16-K-1160

                             STATE OF LOUISIANA

                                          v.

                                SKYLAR FRANK


        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL
               THIRD CIRCUIT, PARISH OF ALLEN



CLARK, J.

      This case presents the question of whether the court of appeal erred in

applying Louisiana’s jurisprudential “same evidence” test to find that defendant’s

conviction for attempted felony carnal knowledge of a juvenile, La.R.S. 14:27 and

14:80, must be set aside in light of his conviction for malfeasance in office, La.R.S.

14:134, because it violates the prohibition against double jeopardy. Finding that no

double jeopardy violation occurred, we reinstate defendant’s conviction and

sentence for attempted felony carnal knowledge of a juvenile. Furthermore, we

find no significant difference between U.S. Const. Amend. V and La. Const. art. I,

§ 15 supporting the notion that Louisiana’s constitution affords greater protection

against double jeopardy than the federal constitution or requires this state’s courts

to apply two distinct tests—one federal and one state—to analyze double jeopardy

claims. Therefore, Louisiana courts are bound only to apply the standard

established by the U.S. Supreme Court in Blockburger v. United States, 284 U.S.

299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to protect against double jeopardy and can

dispense with Louisiana’s separate “same evidence” test.
       The State charged defendant, a former Oakdale police officer, with felony

carnal knowledge of a juvenile, malfeasance in office, and obstruction of justice.

The charges arose from an incident involving 15-year-old B.W. On May 23, 2014,

B.W.’s uncle, Thomas Buxton, became concerned when he saw a police unit

parked in front of his sister’s Allen Parish residence, where he knew his niece was

home alone. 1 Mr. Buxton entered the home and found a police gun belt and radio

on the living room floor. In B.W.’s bedroom, he found defendant alone with B.W.

She was in bed under the covers, and defendant was hiding behind the bedroom

door with his shirt untucked and his belt undone.

       B.W. first told investigators that defendant went to the residence to force

Hesikiah Hayward, her former boyfriend and defendant’s cousin, to leave. She

claimed Mr. Hayward fled when defendant began searching the home. She later

recanted that account and stated that defendant concocted the story about Mr.

Hayward. She also admitted that, before her uncle interrupted them, she had

performed oral sex on defendant and was about to engage in sexual intercourse

with him.

       Defendant told investigators he went to the residence to compel Mr.

Hayward to leave and found his cousin hiding in a closet. He claimed he did not

inform the dispatcher of his location because he did not want Mr. Hayward to get

in trouble. He denied any sexual misconduct with B.W.

       Mr. Hayward told investigators he was not in the residence at the time of the

incident, but had received text messages from B.W., asking him to say he was

there when defendant arrived. Text messages on Mr. Hayward’s phone confirmed


       1
          GPS records from defendant’s police vehicle confirmed the unit had been parked in
front of the residence with the ignition off for 13 minutes. A police dispatcher testified defendant
(who was on-duty at the time) had not been dispatched there, and he did not call-in his location
pursuant to protocol.

                                                 2
this account.2 Defendant had instructed B.W. to delete the relevant text messages

on her cell phone.

       An Allen Parish jury found defendant guilty of attempted felony carnal

knowledge of a juvenile, malfeasance in office, and obstruction of justice.3 The

trial court sentenced him to four years imprisonment at hard labor (with all but one

year suspended) on each conviction and ran the sentences concurrently. 4

      The court of appeal affirmed in part, vacated in part, and remanded for

establishment of a payment plan for costs and fees. State v. Frank, 15-0893 (La.

App. 3 Cir. 5/25/16), 192 So.3d 888. The majority vacated defendant’s conviction

for attempted felony carnal knowledge of a juvenile because it found that

punishing defendant for that conviction and the malfeasance in office conviction

violated double jeopardy, pursuant to this state’s “same evidence” test. Frank, 15-

0893, pp. 4–8, 192 So.3d at 891–93. In reaching that conclusion, the majority

relied on, inter alia, the state’s comment during closing argument that “[a]nd lastly

we’ve proven beyond a reasonable doubt the third element of Malfeasance in

Office through the testimony of [B.W.] saying that she performed oral sex on the

defendant while he was on duty.” Frank, 15-0893, p. 7, 192 So.3d at 893.

      Under Blockburger, there is no obstacle to convicting defendant of, and

punishing him for, both attempted felony carnal knowledge and malfeasance in

office. As noted by Judge Saunders in his dissent:

      The two crimes in question, malfeasance and attempted carnal
      knowledge, do not, according to their definitions, appear to be the
      same offense. Attempted carnal knowledge occurs when a person, age
      seventeen or older, attempts to have sexual intercourse,

      2
        The state also presented evidence that defendant communicated extensively with B.W.
via messaging application “Kik” under an assumed name.
      3
          The obstruction of justice conviction is not at issue on appeal.
      4
          The trial court also imposed a $2000 fine for each conviction.

                                                  3
             with consent, with a person who is thirteen years of age
             or older but less than seventeen years of age, when the
             victim is not the spouse of the offender and when the
             difference between the age of the victim and the age of
             the offender is four years or greater.

      La.R.S. 14:80; La.R.S. 14:27. It is sufficient that oral sex occurred.
      La.R.S. 14:80. Malfeasance in office is committed when a public
      officer intentionally refuses or fails to perform his lawfully required
      duty or intentionally performs his lawfully required duty in an
      unlawful way.

      On their face, it is clear that there are several elements for attempted
      carnal knowledge that are not required to convict for malfeasance and
      vice versa. For example, for malfeasance in office, the State must
      show that Defendant was a public officer. No such showing is
      necessary for attempted carnal knowledge. Likewise, for attempted
      carnal knowledge, Defendant’s age is a relevant fact that the State
      must establish, no such showing is necessary for a malfeasance in
      office prosecution. Thus, each offense requires proof which the other
      does not, and this case fails the Blockburger test.

Frank, 15-0893, pp. 1–2, 192 So.3d at 896.

      The present case arises, however, because Louisiana has also applied a

“same evidence” test in addition to the Blockburger test. The impact of the “same

evidence” test on this state’s double jeopardy jurisprudence has not gone without

criticism. Judge Drew in particular succinctly illuminated the problem with this

troublesome test:

      Three out of every four states settle Fifth Amendment claims of
      double jeopardy by simply applying the precepts of Blockburger v.
      United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932),
      wherein a defendant can be convicted of two offenses arising out of
      the same criminal incident if each crime contains an element not
      found in the other. This is a straightforward test.

      In Louisiana, courts are required to also add a murky “same evidence”
      test, which few understand, and none can clearly explain. This double
      whammy has lead to inconsistent results and wildly uneven double
      jeopardy analyses. Blockburger, supra, has been the gold standard for
      80 years. It is more than sufficient to afford protection against double
      jeopardy under the Fifth Amendment.

State v. Balentine, 47,858, pp. 2–3 (La. App. 2 Cir. 7/10/13), 119 So.3d 979, 985–

86 (Drew, J., dissenting) (footnote omitted).

                                          4
       The Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall

any person be subject for the same offence to be twice put in jeopardy of life or

limb.” 5 The Supreme Court has determined that this clause protects against a

second prosecution for the same offence after acquittal, Ball v. United States, 163

U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), against a second prosecution for the

same offense after conviction, Ex parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33

L.Ed. 118 (1889), and against multiple punishments for the same offense, Ex parte

Lange, 85 U.S. 163, 21 L.Ed. 872, 18 Wall. 163 (1873). The scope of these

protections depends on the meaning of “the same offence.”

       According to Justice Brennan’s concurrence in Ashe v. Swenson, 397 U.S.

436, 451, 90 S.Ct. 1189, 1198, 25 L.Ed.2d 469 (1970), various “same evidence”

tests for determining “same offence” developed in the common law, first appearing

in The King v. Vandercomb, 2 Leach 708, 720, 168 Eng.Rep. 455, 461 (Crown

1796), and were eventually adopted by a majority of U.S. jurisdictions. One

particularly influential version of the “same evidence” test was adopted by

Massachusetts and expressed as follows:

       A conviction or acquittal upon one indictment is no bar to a
       subsequent conviction and sentence upon another, unless the evidence
       required to support a conviction upon one of them would have been
       sufficient to warrant a conviction upon the other. The test is not
       whether the defendant has already been tried for the same act, but
       whether he has been put in jeopardy for the same offence. A single act
       may be an offence against two statutes; and if each statute requires
       proof of an additional fact which the other does not, an acquittal or
       conviction under either statute does not exempt the defendant from
       prosecution and punishment under the other.

Morey v. Commonwealth, 108 Mass. 433, 435 (Mass. 1871).6 The U.S. Supreme


       5
         Similarly, La. Const. Art. 1, § 15 provides, “No person shall be twice placed in jeopardy
for the same offense, except on his application for a new trial, when a mistrial is declared, or
when a motion in arrest of judgment is sustained.”
       6
        Applying this test, the Massachusetts Supreme Judicial Court found that a conviction
for lewd and lascivious cohabitation did not bar subsequent indictment for adultery although
                                                5
Court essentially adopted the Morey test in Blockburger v. United States, 284 U.S.

299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932): 7

       Each of the offenses created requires proof of a different element. The
       applicable rule is that, where the same act or transaction constitutes a
       violation of two distinct statutory provisions, the test to be applied to
       determine whether there are two offenses or only one, is whether each
       provision requires proof of a fact which the other does not. Gavieres
       v. United States, 220 U. S. 338, 342, 31 S. Ct. 421, 55 L. Ed. 489
       [(1911)], and authorities cited. In that case this court quoted from and
       adopted the language of the Supreme Court of Massachusetts in
       Morey v. Commonwealth, 108 Mass. 433: “A single act may be an
       offense [sic] against two statutes; and if each statute requires proof of
       an additional fact which the other does not, an acquittal or conviction
       under either statute does not exempt the defendant from prosecution
       and punishment under the other.” Compare Albrecht v. United States,
       273 U. S. 1, 11, 12, 47 S. Ct. 250, 71 L. Ed. 505 [(1927)], and cases
       there cited. Applying the test, we must conclude that here, although
       both sections were violated by the one sale, two offenses were
       committed.

       The double jeopardy prohibition of the Fifth Amendment applies to the

states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794,

89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). It also applies to different levels of


based on the same acts of unlawful intercourse:

       The case now before us cannot be distinguished in principle from those just cited.
       The indictment for lewd and lascivious cohabitation contained no averment and
       required no proof that either of the parties was married, but did require proof that
       they dwelt or lived together, and would not be supported by proof of a single
       secret act of unlawful intercourse. Commonwealth v. Calef, 10 Mass. 153. The
       indictment for adultery alleged and required proof that the plaintiff in error was
       married to another woman, and would be satisfied by proof of that fact and of a
       single act of unlawful intercourse. Proof of unlawful intercourse was indeed
       necessary to support each indictment. But the plaintiff in error could not have
       been convicted upon the first indictment by proof of such intercourse and of his
       marriage, without proof of continuous unlawful cohabitation; nor upon the second
       indictment by proof of such cohabitation, without proof of his marriage. Full
       proof of the offence charged in either indictment would not therefore of itself
       have warranted any conviction upon the other. The necessary consequence is,
       that, assuming that proof of the same act or acts of unlawful intercourse was
       introduced on the trial of both indictments, the conviction upon the first
       indictment was no bar to a conviction and sentence upon the second; and that
       there is no error in the judgment, for which it can be reversed.

Id. at 435–36.
       7
          The U.S. Supreme Court found in Blockburger that defendant could be prosecuted for
two offenses arising from a single drug transaction: sale of morphine hydrochloride not in its
original stamped package and sale of morphine hydrochloride without a written purchase order.
                                                  6
courts within a state. Waller v. Florida, 397 U.S. 387, 394–95, 90 S.Ct. 1184,

1188–89, 25 L.Ed.2d 435 (1970) (conviction in city court barred felony

prosecution for same offense in state court). Thus, Louisiana courts are

constitutionally required to apply Blockburger.

       Louisiana courts have to some extent, however, viewed Blockburger as a

constitutional minimum that is supplemented by a heightened protection against

double jeopardy afforded under Louisiana law. That view has never been

adequately grounded in any textual difference between this state’s and federal

constitutional provisions. Generally, the jurisprudence of double jeopardy in

Louisiana and federal courts stem from the same common law sources and have

always remained tightly synchronized with one exception, discussed below.

       The Blockburger test is often characterized as a “distinct fact” test to

distinguish it from the “same evidence” test that preceded it in Louisiana.

Louisiana expressed the pre-Blockburger “same evidence” test as follows (in the

context of two prosecutions arising from one act of transporting gin and wine

between parishes):

       The gravamen or the essence of the offense against the state was the
       possession and transportation of the liquor. The line dividing the
       parishes, from which and into which defendant transported the liquor,
       formed no essential element of the offense. The only importance the
       parish line could have in the matter would be for the determination of
       the question of venue or jurisdiction.

       In Marr’s Criminal Jurisprudence, p. 580, it is said that identity of the
       offense is an essential element in support of a plea of autre fois. By
       this is not meant formal, technical, absolute identity; the rule is that
       there must be only substantial identity, that the evidence necessary to
       support the second indictment would have been sufficient for the first.
       In the instant case there was not only substantial identity, but the
       identity of the possession and the transportation in the two parishes of
       the same liquor was absolute and conclusive. No more and no
       different evidence was required to support the charge in Bossier than
       was necessary to make out the case in Red River.


Id., 284 U.S. at 303–04, 52 S.Ct. at 182.
                                            7
State v. Roberts, 152 La. 283, 286–87, 93 So. 95, 96–97 (1922) (emphasis added).

Notably, this pre-Blockburger test involving “no more and no different evidence”

necessary to support both charges is quite similar to the initial pronouncement at

the outset of Morey (i.e., “[T]he evidence required to support a conviction upon

one of them would have been sufficient to warrant a conviction upon the other.”).

The U.S. Supreme Court in Blockburger, however, adopted the “additional fact”

language that appears later in Morey (and is reproduced above). Nonetheless, there

is no reason to believe that the Massachusetts Supreme Judicial Court intended to

articulate two different tests in Morey; instead, that court used slightly different

language to expound upon a singular concept. Nonetheless, that court’s exposition

formed the basis of two, distinct tests as the Blockburger and the “same evidence”

tests in this state.

          In State v. Didier, 262 La. 364, 374–76, 263 So.2d 322, 326–27 (1972), this

Court determined that the legislature had codified the jurisprudential standard set

forth in Roberts, supra, in La.C.Cr.P. art. 596.8 This Court subsequently opined

that “[t]he ‘same evidence test’ is somewhat broader in concept than Blockburger,

the central idea being that one should not be punished (or put in jeopardy) twice for

the same course of conduct.” State v. Steele, 387 So.2d 1175, 1177 (La. 1980). The

Steele court cited no authority for that conclusion and provided no further

explanation, but may have had State ex rel. Wikberg v. Henderson, 292 So.2d 505,

508-09 (1974) in mind.


8
    La.C.Cr.P. art. 596 provides:

          Double jeopardy exists in a second trial only when the charge in that trial is:

          (1) Identical with or a different grade of the same offense for which the defendant
          was in jeopardy in the first trial, whether or not a responsive verdict could have
          been rendered in the first trial as to the charge in the second trial; or

          (2) Based on a part of a continuous offense for which offense the defendant was
          in jeopardy in the first trial.
                                                   8
      In Wikberg, the majority, despite stating that the Blockburger test is not

much different than the test traditionally used in Louisiana, see Wikberg, 292 So.2d

at 508–09, engaged in a broader analysis to find that convicting a defendant for

attempted armed robbery following a conviction for felony-murder arising out of

the same incident violated the prohibition against double jeopardy. The majority

based its conclusion on the belief that the enumerated felony underlying a felony-

murder charge operates much like a lesser responsive charge while not technically

amounting to such:

      Of course, an essential element of the state’s proof of felony-murder is
      the commission or attempted perpetration of the enumerated felony.
      The enumerated felony is therefore a different grade of the same
      offense (or an included offense) for double jeopardy purposes. See
      C.Cr.P. Art. 596.

      In most cases, the lesser grade or included offense is generically the
      same as the more severe crime charge, e.g., armed robbery and theft.
      In the case of felony-murder and felony-manslaughter, however,
      generically different offenses such as armed robbery and murder are
      combined into a single offense through a legal fiction, which fiction
      relieves the state of proving intent to kill or inflict great bodily harm.
      This difference may account for some of the confusion in the
      jurisprudence dealing with felony-murder and double jeopardy.

Wikberg, 292 So.2d at 509. The majority noted that the legislature enacted Article

596 without the “responsiveness” requirement of former Article 279 of the 1928

Code of Criminal Procedure and thereby “broadened” the protection of the article,

which view may have inspired the statement in Steele that Louisiana law is

“somewhat broader” than Blockburger. See Wikberg, 292 So.2d at 510. Chief

Justice Sanders’ dissent in Wikberg clearly perceived the majority as utilizing a

broader test than used previously in Louisiana or federal courts. See Wikberg, 292

So.2d at 513-14. Regardless, the U.S. Supreme Court subsequently found in Harris

v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (citations

omitted) that “[w]hen . . . conviction of a greater crime, [felony murder], cannot be


                                          9
had without conviction of the lesser crime, [in this case] robbery with firearms, the

Double Jeopardy Clause bars prosecution for the lesser crime, after conviction of

the greater one.” Therefore, Harris healed the brief schism between federal and

Louisiana double jeopardy jurisprudence. The concept that Louisiana must utilize a

second, broader double jeopardy analysis, however, took root well beyond the

context of Article 596 and felony murder in which it arose.

       Thus, Louisiana’s anticipation of U.S. Supreme Court double jeopardy

jurisprudence (and specifically the notion that the Double Jeopardy Clause bars

prosecution for the underlying felony after a conviction for felony murder) has led

to the present state of the jurisprudence denounced by Judge Drew’s insightful

dissent in Balentine, which is perceived as a two-stage process in which a lesser

federally-mandated standard is first applied followed by the application of

heightened state standard. These two levels of protection, however, are not

grounded in any substantive difference in the constitutional texts. Compare U.S.

Const. amend. V (“[N]or shall any person be subject for the same offence to be

twice put in jeopardy of life or limb.”) with La. Const. Art. I, § 15 (“No person

shall be twice placed in jeopardy for the same offense, . . . .”). Accordingly, we

take this opportunity to make clear that the protections against double jeopardy

mandated by the federal constitution, as restated in this state’s constitution, fall

within the analytical framework set forth in Blockburger and Louisiana courts need

only apply that framework in analyzing questions of double jeopardy. Because no

double jeopardy violation is apparent here under Blockburger,9 we reverse in part

the court of appeal and reinstate defendant’s conviction and sentence for attempted


       9
         Defendant appears to concede there is no obstacle presented here by Blockburger. See
Brief in Opposition, p. 6 (“It is not argued that the language in the two statutes at issue—
malfeasance in office and attempted felony carnal knowledge of a juvenile—reveals a double
jeopardy violation by virtue of the strict ‘Blockburger’ distinct fact test, but the inquiry does not
end there.”).
                                                10
felony carnal knowledge of a juvenile.10

REVERSED IN PART




       10
         Because we dispense with the “same evidence” test, we need not resolve the
disagreement between the majority and dissent in the court below as to its correct application
here.
                                             11
