                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #030


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 27th day of June, 2018, are as follows:




PER CURIAM:


2017-K-0520       STATE OF LOUISIANA v. JUBBARD PRICE (Parish of Orleans)
                  The legislature has provided no statutorily authorized responsive
                  verdicts to the crime of second degree kidnapping in La. C.Cr.P.
                  art. 814, and therefore La. C.Cr.P. art. 815, and its requirement
                  that simple kidnapping be a lesser and included grade of second
                  degree kidnapping before a verdict of guilty of the former can be
                  responsive to a charge of the latter, applies by its plain
                  language. Under State v. Simmons, 01–0293 (La. 5/14/02), 817
                  So.2d 16, because reasonable state of facts can be imagined
                  wherein the greater offense second degree kidnapping is committed
                  without perpetration of the lesser offense of simple kidnapping,
                  a verdict of guilty of simple kidnapping is not responsive to a
                  charge of second degree kidnapping. Because the jury’s return of
                  the non-responsive verdicts is an implicit acquittal of the
                  crimes charged, we reverse the court of appeal and remand to the
                  trial court to enter a post-verdict judgment of acquittal on the
                  five counts of second degree kidnapping.

                  REVERSED AND REMANDED

                  GUIDRY, J., dissents.
06/27/18


                     SUPREME COURT OF LOUISIANA


                                 No. 2017-K-0520

                            STATE OF LOUISIANA

                                     VERSUS

                               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:


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      (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 support a conviction of the lesser and included
      offense. Dufore at 258; Elaire, at 248–49.

State v. Simmons, 01–0293, p. 4 (La. 5/14/02), 817 So.2d 16, 19.

      Second degree kidnapping is defined as follows:

      A. Second degree kidnapping is the doing of any of the acts listed in
      Subsection B wherein the victim is:

      (1) Used as a shield or hostage;

      (2) Used to facilitate the commission of a felony or the flight after an
      attempt to commit or the commission of a felony;

      (3) Physically injured or sexually abused;

      (4) Imprisoned or kidnapped for seventy-two or more hours, except as
      provided in R.S. 14:45(A)(4) or (5); or

      (5) Imprisoned or kidnapped when the offender is armed with a

                                         3
      dangerous weapon or leads the victim to reasonably believe he is
      armed with a dangerous weapon.

      B. For purposes of this Section, kidnapping is:

      (1) The forcible seizing and carrying of any person from one place to
      another; or

      (2) The enticing or persuading of any person to go from one place to
      another; or

      (3) The imprisoning or forcible secreting of any person.

La. R.S. 14:44.1(A), (B). In contrast, simple kidnapping is defined as:

      (1) The intentional and forcible seizing and carrying of any person
      from one place to another without his consent.

      (2) The intentional taking, enticing or decoying away, for an unlawful
      purpose, of any child not his own and under the age of fourteen years,
      without the consent of its parent or the person charged with its
      custody.

      (3) The intentional taking, enticing or decoying away, without the
      consent of the proper authority, of any person who has been lawfully
      committed to any institution for orphans, persons with mental illness,
      persons with intellectual disabilities, or other similar institution.

      (4) The intentional taking, enticing or decoying away and removing
      from the state, by any parent of his or her child, from the custody of
      any person to whom custody has been awarded by any court of
      competent jurisdiction of any state, without the consent of the legal
      custodian, with intent to defeat the jurisdiction of the said court over
      the custody of the child.

      (5) The taking, enticing or decoying away and removing from the
      state, by any person, other than the parent, of a child temporarily
      placed in his custody by any court of competent jurisdiction in the
      state, with intent to defeat the jurisdiction of said court over the
      custody of the child.

La. R.S. 14:45(A).

      Thus, it is possible to commit second degree kidnapping without committing

simple kidnapping. Indeed, there are ten ways, given the manner in which these

statutes define the offenses. Applying Simmons, because reasonable state of facts

can be imagined wherein the greater offense is committed without perpetration of


                                         4
the lesser offense, a verdict for the lesser cannot be responsive as required by La.

C.Cr.P. art. 815.

      The court of appeal erred in finding that this court had “implicitly” found

otherwise in State v. McGhee, 15-2140 (La. 6/29/17), 223 So.3d 1136, and State v.

Porter, 93-1106 (La. 7/5/94), 639 So.2d 1137. In McGhee, this court considered

whether the evidence was sufficient to show defendant was anything other than an

unwitting bystander to the crime, and the question of responsive verdicts was not

presented. Likewise, in Porter, this court granted certiorari to determine whether

the trial court erred in granting, over defense objection, the prosecutor’s motion

under La. C.Cr.P. art. 814 to exclude from the list of responsive verdicts the

statutorily authorized responsive verdicts of guilty of simple rape and attempted

simple rape to the charge of aggravated rape. The question of whether simple

kidnapping is a lesser and included grade of second degree kidnapping was not

presented.

      While the court of appeal is correct that a plurality of this court in State ex

rel. Elaire v. Blackburn required a defendant to make a contemporaneous objection

to the instruction on responsive verdicts in order to complain on appeal of the

insufficiency of the evidence supporting the responsive verdict, that decision

carefully distinguished between those responsive verdicts that are necessarily a

lesser and included grade of the charged offense and those that are not lesser and

included offenses but are nevertheless legislatively authorized as responsive

verdicts in La. C.Cr.P. art. 814:

      It is important to distinguish between those responsive verdicts which
      are lesser and included grades of the charged offense and those
      responsive verdicts which are not lesser and included offenses but are
      nevertheless included in La. C.Cr.P. Art. 814. Lesser and included
      grades of the charged offense are those in which all of the essential
      elements of the lesser offense are also essential elements of the greater
      offense charged. State v. Cooley, 260 La. 768, 257 So.2d 400 (1972).

                                         5
      Thus, the evidence which would support a conviction of the charged
      offense would necessarily support a conviction of the lesser and
      included offense. However, in cases of the legislatively provided
      responsive verdicts which are not truly lesser and included grades of
      the charged offense, evidence which would support a conviction of
      the greater offense would not necessarily support a conviction of the
      legislatively responsive offense. In such cases, the evidence may be
      insufficient to establish an essential element of the lesser crime which
      is not an essential element of the greater crime.

State ex rel. Elaire, 424 So.2d at 248–249 (footnotes omitted).

      Thus, to effectuate the legislature’s choice to create responsive verdicts by

legislative fiat that are not necessarily lesser and included grades of the offense

charged, the plurality determined that “at least 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.” State ex rel. Elaire, 424 So.2d at 252. That rule was grounded in

the text of La. C.Cr.P. art. 814(C), which authorizes a trial court to exclude a

legislatively authorized responsive verdict “[u]pon motion of the state or the

defendant, or on its own motion, . . . if, after all the evidence has been submitted,

the evidence, viewed in a light most favorable to the state, is not sufficient

reasonably to permit a finding of guilty of the responsive offense.” See State ex rel.

Elaire, 424 So.2d at 251 (“The 1982 amendment adding Section C to Article 814

now gives the trial judge discretion, on motion of either side, to exclude a

responsive verdict which is not supported by the evidence. Therefore, even if the

offense is legislatively designated as responsive by Article 814, the defendant may

timely object to an instruction on a responsive verdict on the basis that the

evidence does not support that responsive verdict.”). The plurality in Elaire did not

purport to address lesser and included offenses, and engrafting a similar

requirement onto La. C.Cr.P. art. 815 would frustrate rather than effectuate the

                                          6
legislature’s plain statement in that article that in all cases not provided for in

La.C.Cr.P. art. 814, guilty of a lesser and included grade of the offense is a

responsive verdict.

      The court of appeal was also too quick to distinguish State v. Graham. In

that decision, this court engaged in a relatively straightforward application of the

rule of Simmons (albeit against an unusual confluence of procedural irregularities)

to find that molestation of a juvenile is not a lesser and included grade of

aggravated incest:

      Because aggravated incest can be committed in numerous ways, only
      one of which is molestation of a juvenile, the evidence sufficient to
      support conviction of aggravated incest may not necessarily support
      conviction for molestation of a juvenile. It might instead, depending
      on the circumstances of the case, support a conviction for sexual
      battery, carnal knowledge, indecent behavior, and so on. Stated
      another way, many reasonable scenarios can be imagined wherein the
      greater offense is committed without perpetration of the lesser
      offense. Accordingly, molestation of a juvenile is not a lesser and
      included grade of aggravated incest and the trial court erred in
      including “guilty of molestation of a juvenile” among the responsive
      verdicts.

Graham, 14-1801, p. 6, 180 So.3d at 275. This court also applied longstanding

principles to find that the Double Jeopardy clause barred Graham from being

retried following his implicit acquittal on the crime charged:

      Given the state’s failure to prove familial affinity between the
      defendant and the alleged victim at the time of the incident—an
      essential element of aggravated incest—the jury implicitly acquitted
      defendant of that charge by returning a verdict of guilty of molestation
      of a juvenile. The jury’s implicit acquittal is a bar to any subsequent
      prosecution for aggravated incest. See Price v. Georgia, supra; see
      also Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223–24,
      2 L.Ed.2d 199 (1957) (verdict of acquittal is final, “ending a
      defendant’s jeopardy, and even when ‘not followed by any judgment,
      is a bar to a subsequent prosecution for the same offence’ ”) (quoting
      United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41
      L.Ed. 300 (1896)).

Graham, 14-1801, p. 10, 180 So.3d at 278. The jury implicitly acquitted defendant

of five counts of second degree kidnapping, and he is likewise entitled to the same

                                          7
relief.

          In sum, the legislature has provided no statutorily authorized responsive

verdicts to the crime of second degree kidnapping in La. C.Cr.P. art. 814, and

therefore La. C.Cr.P. art. 815, and its requirement that simple kidnapping be a

lesser and included grade of second degree kidnapping before a verdict of guilty of

the former can be responsive to a charge of the latter, applies by its plain language.

Under Simmons, because reasonable state of facts can be imagined wherein the

greater offense second degree kidnapping is committed without perpetration of the

lesser offense of simple kidnapping, a verdict of guilty of simple kidnapping is not

responsive to a charge of second degree kidnapping. Because the jury’s return of

the non-responsive verdicts is an implicit acquittal of the crimes charged, we

reverse the court of appeal and remand to the trial court to enter a post-verdict

judgment of acquittal on the five counts of second degree kidnapping.

REVERSED AND REMANDED




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