Criminal Law Outline A

Criminal Law Outline Based upon class notes - Loyola University (New Orleans) School of Law Fall 2002
(Evening) - Professor Harges Text - Professor Harges' Case Notes, etc. Compiled by Joseph Pastorek, M.D. N.B.: We meet 14 times, but there are really TWO classes per night, so that's 28 classes. Roll will be taken at the beginning of EACH hour, and you must attend 21 classes to be able to take the final (and you'll get a "W" - unauthorized withdrawal). Addendum: He won't be picky about 21 versus 20 classes . . . . Introduction: A. Criminal Law: 1. criminal law deals with elements of actions which accused has committed, which may violate some criminal statute - it deals with the accused's actions/commissions 2. ACJ is different, since it deals more with the police actions, and the effects thereof on the rights of the accused B. Sources of criminal law: 1. Model Penal Code - not widely adopted so far - similar to the U.C.C. or Restatements 2. Louisiana Criminal Code - for the state of La. 3. common-law casebooks - different schemes from different states, but here we will only look at La., and perhaps compare with other case schemes C. Juries: 1. grand jury - larger than a petit jury - traditional 16-23 in federal jury, 12 in La. a. sit in secrecy and determine if a crime has been committed 2. petit jury - jury (usually 6-12) called as a trier of fact and of guilt - not in secret D. felony - definition in La. La. R.S. 14:2. Definitions ... (4) "Felony" is any crime for which an offender may be sentenced to death or imprisonment at hard labor. ... a. no time frame listed (federal felonies generally have durations of 6 months) b. "hard labor" means (today) imprisonment in a penitentiary, rather than jail c. to decide whether a crime is a felony or misdemeanor, you look at the penalty and see if it's punishable by death or hard labor - if there's no death or hard labor in the sentencing, it's a misdemeanor I. La. Crim. Code - General Principles: A. legal definitions of crimes: 1. 2nd Degree murder - 1973 enactment in La. a. 1942 - "murder" was codified for the first time in La. (1) before 1942, there were only the penalties defined for the crimes, not the specific elements of each type of crime (which were taken from the English common-law jurisprudence) (2) in 1942, La. codified "murder" but defined it as from the common-law b. 1973 - La. legislature codified the different types/degrees of "murder" c. common-law murder - felonious killing of a human being (1) under common-law, a "human being" was someone born alive
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B. definition of "person" or "human being" (La. R.S. 14:2(7)): 1. State v. Gyles, 313 So.2d 799 (La. 1975) D struck a pregnant woman (8 months pregnant) and she delivered a stillborn child. The charge was second degree murder (La. R.S. 14:30.1), which is the "killing of a human being. . . . (with) specific intent to kill or inflict great bodily harm." District court indicted D and he moved to quash, on the basis that feticide was not "murder." On Appeal: Common law definition of "murder" concerned the killing of human beings which were born alive (separate from the mother), not of fetuses which were stillborn. District court is reversed and indictment is dismissed. a. no trial, no jury sworn, therefore double jeopardy does not attach - they can charge him with aggravated battery, etc. against the mother, even when the court through out the indictment - the DA can REindict him on a different crime N.B.: Once a jury is sworn, jeopardy attaches. No other indictment for that crime can then occur. (You can only be found guilty of lesser included offenses.) b. concurring judge: J. Calogero felt that a viable fetus was a human being and felt that the legislature could amend the statutes to include a viable fetus within the umbrella of "human being" c. feticide - now, Code of Criminal Procedure includes feticide as La. R. S. 14:32.5 C. various concepts: 1. State v. Flores, 669 So.2d 646 (La. App. 2d Cir. 1996) D adopted victim and admitted to sexual acts with adopted victim and plead guilty under La. R.S. 14:78.1. D attacked constitutionality of aggravated incest on the basis of vagueness and that the offense was not punishable under a valid statute. On Appeal: Court held that sexual intercourse was not vague, and that everyone should reasonably know what sexual intercourse was, even if it was not defined in the statute. Conviction was upheld. a. exception of vagueness: (1) on its face: it's unconstitutional to everyone (2) on its application: it's unconstitutional in this case as applied b. bill of information v. indictment: bill of information (a.k.a. information) - statement made by DA with specific allegations of violation of statutes and files it with the court (DA signs the bill) (2) indictment - brought by grand jury indicating that there is enough evidence to indicate a crime has been committed (document signed by forman of grand jury) c. prosecutorial discretion - prosecutor has discretion to charge with whatever statute he feels is more fitting (La. R.S. 14:4) 2. State v. Ganch, 268 So.2d 214 (La. 1972) D were charged via bill of information with disturbing the peace, La. R.S. 14:103(A)(7). D challenged bill of information on the basis of unconstitutionality, based on First Amendment, and that the statute is overly broad and lower court granted a motion to quash. State appealed. On Appeal: a. over breath: the statute expresses illegal conduct and conduct which is legal (or protected conduct), i.e. the statute sanctions constitutionally permitted conduct as well as impermissible conduct b. state can appeal findings of law, but not findings of fact (by jury or judge) 3 . State v. Baxley, 656 So.2d 973 (La. 1995) D was charged with solicitation with intent to engage in oral copulation, La. R.S. 14:89,
which deals with "unnatural carnal copulation" (and/or solicitation to engage therein). D motioned to quash the bill of information on the basis that the statute was aimed at gays (hence, discriminatory) was affirmed by trial court. D also argued that if one provision of the statute is unconstitutional, the whole statute is, and further, this is cruel and unusual punishment, since oral sex was his "normal" way of life and this statute was discriminatorily aimed at gays and lesbians. State appealed. On Appeal: This is not a bill of attainder, the parts of the statute are severable, if necessary, and D showed no evidence that the statute was applied differently or that legislative intent was to target gays and lesbians. Reversed and remanded. a. bill of attainder: wherein the police can take a D off the street and convicting D with a crime without judge or jury (in this case, trial judge was agreeing with D atty) b. D can defend by filing motion(s) to quash - plea or defense before trial by D to challenge the constitutionality of the statute, jurisdiction, prescription (not prosecuting in a timely matter), improper procedure (bill of information when grand jury is mandated, i.e. capital murder), etc. (1) La. Code Crim. Proc. art. 532 deals with motions to quash c. La. R.S. 14:89. Crime against nature - felony 6. In Re State in the Interest of Ogletree, 244 So.2d 288 (La. App. 4th Cir. 1971) D was juvenile who was declared delinquent (La. R. S. 13:1570 A(5)) for intentional concealing of a dangerous weapon (La. R.S. 14:95A(1)), a pistol. a. juveniles are not found "guilty," as an adult is, but rather adjudicated "delinquent" b. juveniles are not guaranteed a jury trial, but have all other rights as an accused c. "strict construction" is used today in the jurisprudence instead of "genuine" construction (La. R.S. 14:3 - comments) 7. State v. Billiot, 229 So.2d 72 (La. 1969) D charged with trawling in inside waters for shrimp, contra La. R.S. 56:495.1, a misdemeanor. Trial judge suspended jail term and ordered nets, etc. returned to D. State appealed on point of law, that the statute invoked mandatory jail time, etc. On Appeal: La. R.S. 56:507 specifically mandates jail time, etc., which contradicts the discretion clause of La. Code Crim. Proc. art. 894, which allows for discretion in misdemeanors. However, the specific fishing statute is binding over the general criminal code statute on misdemeanors. a. conflicting statutes - the most specific statute rules the more general, under the rules of statutory construction b. bill of exceptions: put court on notice that you will take an appeal - now (La. Code Evid. art. 103) proffer objections contemporaneously, and the bill of exceptions is archaic c. supervisory jurisdiction: supervisory writs - ask a higher court to review a point of law during the course of an action, as opposed to an appeal taken after adjudication d. reporters' comments on statutes: demonstrates history and legislative intent, and judge can ignore or use 8. State v. Porter, 639 So.2d 1137 (La. 1994) D charged with aggravated rape was convicted of lesser offense of forcible rape. D appealed on basis that criminal code (art. 814(C)) that judge unfairly excluded simple rape and attempted simple rape as responsive verdicts. On Appeal: S. Ct. determined that the fact that victim consumed alcohol meant the jury had to decide the question of whether the alcohol may have influenced the degree of resistance/compulsion in the rape. Therefore the conviction for forcible rape was reversed and remanded for a new trial. a. responsive verdict - statutorily specified list of verdicts which a jury can return (1) all states have responsive verdict schemes but all are different
(2) code is updated almost every year because the legislature adds crimes to list b. aggravated rape - responsive verdicts from La. Crim. Code art. 814(A)(8): (1) guilty as charged (2) guilty of attempted aggravated rape (3) guilty of forcible rape (4) guilty of attempted forcible rape (5) guilty of sexual battery (6) guilty of simple rape (7) guilty of attempted simple rape (8) not guilty c. lesser included offense - statutory (not constitutional) scheme to deli d. polling the jury - ask each jury as to their decision (individually) e. burden of proof - criminal case (1) lies with State (2) beyond a reasonable doubt f. power of nullification - jury can make their own decision no matter what the facts, and the judge cannot overrule it (JNOV) as he can in the civil trial (1) right to a jury trial is constitutionally guaranteed - jury is supreme (2) State cannot appeal a jury verdict of not guilty (3) opposite is not true - judge can overrule a guilty verdict if evidence is insufficient for a "reasonable jury" 9. State v. Taylor, 774 So.2d 379 (La. App. 2d Cir. 2000) D was convicted of aggravated rape and sentenced to life without parole. He appealed because trial judge excluded simple rape from the responsive verdicts. On Appeal: There was no evidence that the victim was possibly under the influence of alcohol, so a Porter defense would not work - a reasonable jury would not find any chance of alcohol involvement. Affirmed. a. Prosecutor's Office: (1) screening section (2) Traffic Court (N.O.) (3) Municipal Court (N.O.) (4) Parish Court (combines traffic and municipal) (Jeff. Parish) (5) Appeals Section (6) Juvenile Section (7) Felony Section 10. State v. Juluke, 374 So.2d 1259 (La. 1979) D was charged with forgery, for forging someone's signature on Sears card. D filed motion to quash arguing that "forgery" (La. R.S. 14:72) was not the same as "unauthorized use of a credit card" (La. R.S. 14:67.3), and that DA filed bill of information on the wrong crime. On Appeal: La. R.S. 14:4(1) allows for prosecutorial discretion in selecting the specific statute under which to prosecute, if the alleged act violates two different statutes (a general one versus a specific one). a. prosecutorial discretion - DA has discretion to proceed under either a special criminal statute or a general one, when crime falls under both 11. State v. Davis, 559 So.2d 114 (La. 1990) Judge should properly instruct the jury as to presumption of innocence and principles of circumstantial evidence. a. circumstantial evidence - evidence based on inference, rather than direct proof b. direct evidence - if believed, resolved the issue (don't have to make inferences) c. level of harm of the error of the trial court:
(1) harmless error - trials are not perfect, and judges are not perfect - but if the error does not affect the D's constitutional rights, it's harmless (2) reversible error - error in the trial which is violative of constitutional right d. presumption of regularity - trial court is presumed to have acted correctly absent an articulable basis for concluding otherwise e. presumption of innocence - D is presumed to be innocent absent demonstration beyond a reasonable doubt that he committed the crime II. The Guilty Mind: A. Criminal intent: 1. commission of crime: (La. R.S. 14:08) a. actus reus - guilty act or wrongful deed (physical part of the crime) (1) omission (failure to act) may constitute a guilty act - esp. if there is a duty to act (e.g. lifeguard may be guilty of criminal negligence if he fails to save a drowning person, parent may be guilty of letting a child starve) (2) even if the person doesn't intend to cause the crime, he may be guilty of criminal negligence b. mens rea - guilty state of mine (mental part of the crime) c. must be concurrent to constitute a crime (for a guilty verdict) 2. in La. (and at common-law) - person must be cognizant of behavior to be guilty of commission of a "crime" a. specific criminal intent - subjective b. general criminal intent - objective - reasonable certainty of the result c. criminal negligence - gross deviation of reasonable prudent person standard La. R.S. 14:10. Criminal intent Criminal intent may be specific or general: (1) Specific criminal intent is the state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. (2) General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. a. does a bill of information for an intentional crime constitutionally have to contain the allegation of intent? (must be on notice for proper due process) (1) No. See Scott, infra. b. all attempt and conspiracy crimes are specific intent c. all burglaries are specific intent crimes La. R.S. 14:11. Criminal intent; how expressed The definitions of some crimes require a specific criminal intent, while in others no intent is required. Some crimes consist merely of criminal negligence that produces criminal consequences. However, in the absence of qualifying provisions, the terms "intent" and "intentional" have reference to "general criminal intent." a. generally, if statutes don't specify "specific intent," then general intent is understood 4. State v. Anderson, 603 So.2d 780 (La. App. 1st Cir. 1992) D charged with simple burglary and found guilty at trial. D appealed with the defense
that he was intoxicated at the time and therefore had no intent. On Appeal: Circumstances do not indicate that intoxication precluded the presence of specific intent required of simple burglary. Affirmed a. burglary - covers cars, structures, etc. - the wording of the statute determines the crime of "burglary" (La. R.S. 14:62 - includes dwelling, vehicle, watercraft, or other structure . . . .) (1) specific intent - "intent to commit a felony or any theft therein" (2) if you broke into a house to get out of the rain, without intent to steal, but when you get in you see money and decide to take it, it would not be simple burglary (it may be breaking and entering plus simple theft, but not burglary) b. voluntary intoxication - defense against a specific intent crime (La. R.S. 14.15(2)) if the condition precludes the presence of the a specific criminal intent or special knowledge needed for that particular crime 5. State v. Clark, 643 So.2d 463 (La. App. 3d Cir. 1994) D wanted money back from victim and she wouldn't give it. He got a gun and shot her. He was charged with 2nd degree murder and was convicted. He appealed on the basis that he acted under "sudden passion" or "heat of blood" since she provoked him by keeping his money. On Appeal: Since D told others he was going to shoot someone, and since he got a gun (by a circuitous route) and waited to shoot victim, he obviously had intent. Convicted affirmed. a. intent - differentiates between 2nd degree murder and manslaughter 6. State v. Fuller, 414 So.2d 306 (La. 1982) D convicted of 2nd degree battery and he appealed on the basis that he had no specific intent to use force on the victim, nor to specifically inflict serious injury. On Appeal: a. battery (La. R.S. 14:33-35) - second degree is specific intent 7. State v. Hurst, 606 So.2d 965 (La. App. 3d Cir. 1992) D found GAC of aggravated rape of 9 year-old girl. D appealed that he was intoxicated and didn't have specific intent. On Appeal: Court held that aggravated rape is a general intent crime. So intoxication is not a defense (to specific intent). a. aggravated rape - general intent crime, so the intent to get intoxicated supplies the general intent to attach to the crime 8. State v. Sheppard, 618 So.2d 1204 (La. App. 5th Cir. 1993) D pled guilty to armed robbery and was sentenced to 99 years at hard labor. a. armed robbery is a general intent crime B. Criminal negligence: (La. R.S. 14:10) 1. criminal negligence: a. question of fact b. need not be proven as a fact c. may be inferred from the circumstances of the transaction d. criminal negligence - gross deviation beyond reasonable prudent conduct (1) ordinary, inadvertent, simple, regular negligence are not the same as criminal 2. State v. Rock, 571 So.2d 908 (La. App. 5th Cir. 1990) D found guilty of negligent homicide. He appealed On Appeal: a. you will never be negligence of "negligent homicide" unless you're guilty of criminal negligence b. x. State v. Scott, 278 So.2d 121 (La. 1973)
D charged with bill of information that he distributed heroin. D appealed that he was not charged with "intentionally" distributing heroin and that the DA should have included the "intent" in the bill of information. On Appeal: a. Motion for a Bill of Particulars - what you file in La. court to get the particulars alleged by the State in a criminal case - what crime, what weapon, what is the allegation, etc. III. Homicide: La. R.S. 14:29. Homicide Homicide is the killing of a human being by the act, procurement, or culpable omission of another. Criminal homicide has five grades: (1) First degree murder. (2) Second degree murder. (3) Manslaughter. (4) Negligent homicide. (5) Vehicular homicide. a. "year and a day" rule - State v. Kennedy, 8 (Rob. 590 (1845) - common-law rule that killing is not a murder if a year and a day intervene before the act and the death of the victim b. manslaughter, negligent homicide, and vehicular homicide are lesser responsive verdicts to first and second degree murder c. criminal negligence is not listed - it's not a crime, but it conduct which can lead to a crime A. La. law dealing with homicide: 1. first codification of the La. Criminal Code was in 1942 a. prior to 1942, courts used common-law of England definitions or the Crimes Act of 1805 (1) common-law - murder = killing of a human being "with malice aforethought" a.k.a. "intent to kill", etc. La. R.S. 14:30. First degree murder A. First degree murder is the killing of a human being: (1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, second degree kidnapping, aggravated escape, aggravated arson, aggravated rape, forcible rape, aggravated burglary, armed robbery, drive-by shooting, first degree robbery, or simple robbery. (2) When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman or peace officer engaged in the performance of his lawful duties; (3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; or (4) When the offender has specific intent to kill or inflict great bodily harm and has offered, has been offered, has given, or has received anything of value for the killing. (5) When the offender has the specific intent to kill or to inflict great bodily harm upon a victim under the age of twelve or sixty-five years of age
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or older. (6) When the offender has the specific intent to kill or to inflict great bodily harm while engaged in the distribution, exchange, sale, or purchase, or any attempt thereof, of a controlled dangerous substance listed in Schedules I, II, III, IV, or V of the Uniformed Controlled Dangerous Substances Law. (7) When the offender has specific intent to kill and is engaged in the activities prohibited by R.S. 14:107.1(C)(1). B. For the purposes of Paragraph A(2) of this section, the term "peace officer" means any peace officer, as defined in R.S. 40:2402, and includes any constable, marshal, deputy marshal, sheriff, deputy sheriff, local or state policeman, commissioned wildlife enforcement agent, federal law enforcement officer, jail or prison guard, parole officer, probation officer, judge, attorney general, assistant attorney general, attorney general's investigator, district attorney, assistant district attorney, or district attorney's investigator. C. Whoever commits the crime of first degree murder shall be punished by death or life imprisonment at hard labor without benefit of parole, probation or suspension of sentence in accordance with the determination of the jury. difference between first degree murder and second degree murder is death penalty first degree murder needs: (1) killing of a human being (not a "person") (2) specific intent to kill or inflict great bodily harm (3) aggravating circumstances generally, La. R.S. 14:30(3) is a fact question for the jury - you have to decide did he really intend to kill more than one mental and physical aspects of intent must both be present - the person must intend to kill, e.g. a policeman, and must actually kill a policeman (1) i.e. if you kill a plainclothesman and don't know he's a cop, it's not an aggravated circumstance
2. State v. Holmes, 502 So.2d 1112 (La. App. 4th Cir. 1987) State argued that killing a witness was "receiving something of value" because there would be nobody to testify, therefore should be classed as first degree murder. On Appeal: Court ruled that the specific delineation in the statute did not include all types of benefit, therefore the legislature did not mean it to be so expansive. Therefore, this did not fit under the definition of first degree murder, La. R.S. 14:30(4). So the district court's quashing of the first degree murder conviction was upheld. a. in La., "cold-blooded murder" is second degree murder - you must have a proper aggravating circumstance to reach first degree murder 3. State v. Brown, 619 So.2d 692 (La. App. 4th Cir. 1993) D was convicted of manslaughter and first-degree murder and he appealed. App. Ct. affirmed. The trial court subsequently granted D's application for postconviction relief and ordered out-of- time appeal. On Appeal: App. Ct. held that: (1) statements made by D to physicians at hospital regarding his mental state and inculpating himself in homicides were admissible under statute providing for waiver of physician/patient privilege in cases where D enters plea of guilty by reason of insanity even though physicians were not psychiatrists, and (2) evidence was sufficient to support conclusion that D intended to kill or to inflict great bodily harm upon stabbing victim and her daughter whom D threw off third-floor balcony. Affirmed
4. State v. Stewart, 458 So.2d 1289 (La. 1985) D was drinking and ran his car in a ditch. His common law wife started fighting with him, and two visitors tried to restrain D. Ultimately, he shot and killed the guy who was intervening, and then ran after the wife and shot her (but she lived). He was convicted of first degree murder and sentenced to life. D appealed. On Appeal: S. Ct. determined that he shot the intervenor without the specific intent to kill the wife (or the victim) and revised the conviction to second degree murder, but left the sentence the same. This was a finding that this was not sufficient proof of first degree murder. a. the line has to be drawn somewhere, and the S. Ct. drew this line - apparently there was no obvious specific intent to kill more than one person, and perhaps the two intervenors were not really supposed to be there b. this case will stand for the prospect for intent in similar cases - whether he intends to kill both people at the same time, what can be inferred from the circumstances 5. State v. Miller, 489 So.2d 268 (La. App. 4th Cir. 1986) D killed a cab driver while in flight after purse snatching (simple robbery). D was indicted for first degree murder and he appealed. On Appeal: D was escaping from a simple robbery, satisfying La. R.S. 14:30(A)(1) for the definition of first degree murder. Indictment upheld. a. res gestae - if you're planning or in the escape process of a crime, any bad acts within the limits of the entire crime are connected to the crime 6. State v. Gaspard, 746 So.2d 725 (La. App. 3d Cir. 1999) Man was killed and D confessed. He was convicted of first degree murder and sentenced to life. He appealed that the conviction was based on his confession without enough corroborating evidence. On Appeal: Court found that there was enough independent evidence (bloody footprints, etc.) to corroborate D's confession. Conviction upheld. a. corpus delicti - rises when there is a confession (1) D confesses to a crime (2) issue is corroboration of the D's confession (3) rule is: an accused cannot be convicted on his own uncorroborated confession without proof that a crime has been committed by someone (i.e. you can't convict someone on the confession alone, without other evidence of the crime happening) C. Second degree murder: La. R.S. 14:30.1. Second degree murder A. Second degree murder is the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm; or (2)(a) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, drive-by shooting, armed robbery, first degree robbery, or simple robbery, even though he has no intent to kill or inflict great bodily harm. (b) When the offender is engaged in the perpetration of cruelty to juveniles, even though he has no intent to kill or to inflict great bodily harm. (3) When the offender unlawfully distributes or dispenses a controlled dangerous substance listed in Schedules I or II of the Uniform
Controlled Substances Law which is the direct cause of the death of the recipient who ingested or consumed the controlled dangerous substance. (4) When the offender unlawfully distributes or dispenses a controlled substance listed in Schedules I or II of the Uniform Controlled Dangerous Substances Law to another who subsequently distributes or dispenses such controlled substance which is the direct cause of the death of the person who ingested or consumed the controlled dangerous substance. B. Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. a. second degree murder: (1) killing of a human being and (2) specific intent to kill or inflict great bodily harm or (3) felony murder or (4) cruelty to juveniles (no specific intent needed) b. responsive verdicts (La. Crim. Code art. 814) - guilty - guilty of attempted manslaughter - guilty of aggravated battery - not guilty 1. State v. Knowles, 598 So.2d 430 (La. App. 2d Cir. 1992) D had sexual relationship with his 14 year old second cousin. After a fight, victim is supposed to have pulled a knife on D, and D took the knife away and stabbed her to death. He was convicted of second degree murder and sentenced to life imprisonment. D appealed on the basis that he had no intent (heat of passion or insanity). On Appeal: App. Ct. decided that the multiple stab wounds, etc., indicated an intent to commit great bodily harm or death, and that the question of provocation was one of fact which the jury had decided. Conviction affirmed. 2. State v. Holmes, 620 So.2d 436 (La. App. 3d Cir. 1993) D was convicted of attempted second-degree murder and sentenced to 50 years at hard labor, and defendant appealed. App. Ct. held that although evidence was sufficient to convict D of attempted second-degree murder, inclusion of erroneous requirement in jury charge of specific intent to inflict great bodily harm was reversible error. On Appeal: S. Ct. held that "intent to commit great bodily harm," which was part of the jury instruction, is not an element of attempted second degree murder and therefore jury could have come to a different verdict if it had been instructed on specific intent to kill, not to inflict "great bodily harm." Reversed and remanded. a. attempted second degree murder - intent to kill, not to inflict great bodily harm N.B.: Just because you have a dead body, doesn't mean the DA has to charge murder. 3. State v. Cutwright, 626 So.2d 780 (La. App. 2d Cir. 1993) Couple fought over cocaine rocks and D shot him. D was found guilty of second degree murder and sentenced to life. He appealed that there was no armed robbery (of the cocaine) and that it was an accidental shooting.
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8.
On Appeal: App. Ct. held that a rational jury could find D took the cocaine rocks at gun point and therefore shooting constituted felony murder. Affirmed. a. crack rocks have value, so this would be robbery (armed or simple - no difference to La. R.S. 14:30.1(2)(a) b. acronyms for 2nd degree murder crimes: (1) Did anyone ever find it? State v. Grant, 623 So.2d 7204 (La. App. 2d Cir. 1993) Victim came to Shreveport to find "Big Boy" to buy drugs. D went to car and took keys and victim was killed by someone else. D was convicted of second degree murder and appealed on the basis that he did not commit the killing. On Appeal: D was a principal in a murder, so it's second degree (no specific intent to kill), since it's felony murder (he was involved in the crime - robbery). Affirmed. a. La. R.S. 14:24 - all persons concerned in the commission of a crime are principals b. you don't need to be the shooter to be convicted of second degree murder for felony murder State v. Kalathakis, 563 So.2d 228 (La. 1990) Police raided and there was a shoot-out. Victim was killed by the cops, and D was charged with second degree murder. On Appeal: Conviction of manslaughter was reversed, since actual killer was not D or D's co-conspirators (killer was the cop). a. this case is an extension of Grant, supra: - in order to be convicted of felony murder, the actual killer must be the D or a principal with D in the perpetration of the underlying felony - in this case, the "killer" was a cop b. this is a causation case, like causation-in-fact and proximate cause in torts - proximate cause, since it's (not) a reasonably foreseeable result of the actions - causation-in-fact is met, since but-for the drug lab, victim would not be dead (in La., criminal courts combine reasoning of causation-in-fact and proximate cause in their reasoning - not separately, like in torts) State v. Dixon, 620 So.2d 904 (La. App. 1st Cir. 1993) Woman went to confront ex-husband to get her child out of bar, and husband shot her at the bar (three shots). He was convicted of second degree murder, and he appealed on the basis of provocation. On Appeal: Court held that there was no provocation (witnesses testified that they were calm, etc.). Court inferred intent to kill or inflict great bodily harm since he pointed the gun at her and shot (more than one time). Affirmed. a. D must prove provocation as a defense (preponderance of the evidence) State v. Cannon, 658 So.2d 728 (La. App. 2d Cir. 1995) Man was mad at ex-girl-friend and accosted her at her home with a rifle. He apparently intended to shoot her but shot her brother instead. He was convicted of second degree murder and appealed. On Appeal: Evidence reasonably showed that D intended to shoot old girl friend and hit her brother instead. The intent to kill or cause great bodily harm can transfer to unintended victim and support a conviction of second degree murder. Affirmed. a. transfer of intent case - transfer intent (to commit great bodily harm or kill) from one person is good enough for second degree murder, analogous to torts State v. Matthews, 450 So.2d 644 (La. 1984) Man and stepson went to rough up old girlfriend. They beat her up and left her, where she rolled in a canal and apparently drowned. D was found guilty of second degree murder and sentenced to life. He appealed, that he didn't actually kill her, she drowned.
On Appeal: D had specific intent to at least cause great bodily harm, and that was a substantial factor in causing her death. Therefore, conviction for second degree murder affirmed. D. Manslaughter: La. R.S. 14:31. Manslaughter A. Manslaughter is: (1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed; or (2) A homicide committed, without any intent to cause death or great bodily harm. (a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or (b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Article 30 or 30.1. B. Whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years. However, if the victim was killed as a result of receiving a battery and was under the age of ten years, the offender shall be imprisoned at hard labor, without benefit of probation or suspension of sentence, for not less than ten years nor more than forty years. a. different types of manslaughter: (1) heat of passion manslaughter (a) in murder, you have to have intent (b) elements (to be proved by defendant as mitigating circumstances at the preponderance of the evidence level): - D must be in heat of blood - reasonable person provocation (La. jurisprudence - adultery, severe blow to the head - words are left to the jury to decide) - D's blood still hot - average person's blood must not have cooled (2) felony manslaughter - felonies that are not enumerated in the 1st & 2nd degree murder statutes (3) misdemeanor manslaughter (a) misdemeanor - in La. - any crime other than a felony (b) count misdemeanors directly affecting the person - assault - battery - false imprisonment (4) resisting arrest manslaughter b. responsive verdicts (La. Crim. Code art. 814) - guilty
- not guilty 1. State v. McCray, 621 So.2d 94 (La. App. 2d Cir. 1993) D was convicted of attempted second-degree murder and sentenced to imprisonment at hard labor for 40 years. App. Ct. held that: (1) evidence was sufficient to sustain conviction, and (2) sentence was required to be vacated, for noncompliance with sentencing guidelines requirements. On Appeal: S. Ct. held that D did not establish "sudden passion" or "heat of blood" in connection with shooting of victim who was his former girlfriend, as required in order to be convicted for manslaughter rather than second-degree murder; D had taken pistol to victim's home, and had gone to retrieve pistol from adjacent room after victim rebuffed his initial offer of reconciliation, and there was a period of grappling with victim's relatives which passed before he was able to fire pistol at victim. Conviction affirmed; sentence vacated and case remanded for resentencing. a. he was charged with attempted murder 2. State v. Anseman, 607 So.2d 665 (La. App. 5th Cir. 1992) Ds were convicted of one count of manslaughter, three counts of cruelty to juveniles, and they appealed. App. Ct. held that: (1) manslaughter statute permits felony involving criminal negligence by offender to serve as predicate; (2) trial court's exclusion of evidence of defendant mother's depression, based on her failure to plead not guilty by reason of insanity, did not prevent defendant father from presenting defense; and (3) sentences of 21 years' imprisonment, the statutory maximum, were not excessive. On Appeal: Manslaughter statute, which provides that manslaughter is homicide committed without intent to cause death or great bodily harm when offender is engaged in perpetration or attempted perpetration of felony, permits any felony, whether committed intentionally or through criminal negligence, to serve as predicate offense, and thus, offense of cruelty to juveniles is proper predicate felony for manslaughter charge. Affirmed. a. cruelty to a juvenile was not a felony at this time - law changed later (1997) because of this case b. at this time, cruelty to a juvenile was a felony not listed under La. R.S. 14:30 or La. R.S. 14:30.1, and so it was a lesser offense (not felony manslaughter) c. you can't connect negligent homicide and manslaughter, since they are grades of homicide - the other felonies are used to make the type or level of manslaughter 3. State v. Vidrine, 521 So.2d 472 (La. App. 4th Cir. 1988) D was convicted of manslaughter, and he appealed. App. Ct. held that evidence was not sufficient to sustain conviction of manslaughter under statute defining manslaughter as homicide committed without intent to cause death or great bodily harm when offender is engaged in perpetration or attempted perpetration of felony or intentional misdemeanor directly affecting person. On Appeal: Evidence was not sufficient to support manslaughter conviction, under statute defining manslaughter as homicide committed without any intent to cause death or great bodily harm when offender is engaged in perpetration or attempted perpetration of felony or intentional misdemeanor directly affecting person, particularly as to perpetration or attempted perpetration of any felony or intentional misdemeanor; witness testified that she heard victim yell for someone to stop hitting her, but could not say defendant was the man whose voice she heard, another witness testified victim did not want to leave bar on night of her death with defendant because she was afraid he would beat her or shoot her, testimony of those witnesses was only indication that defendant committed intentional misdemeanor upon victim before she died, and defendant testified struggle ensued over shotgun in victim's possession and gun
went off. Conviction reversed. a. problem here was lack of definitive evidence - no specific witnesses, etc. and there was reasonable doubt as to the exact facts (reasonable explanation - accident, not beyond a reasonable doubt that defendant was heard by the witness, etc.) b. misdemeanor was not proven to be intentional - it wasn't sure that it was not in self-defense, scuffling over the gun c. not heat of passion manslaughter or resisting arrest, so they had to have a felony or intentional misdemeanor to make it manslaughter 4. State v. Myers, 760 So.2d 310 (La. 2000) Following jury trial, D was convicted of manslaughter during the perpetration of a felony. D was doing drugs with the shooter, who killed a cop, and then the cops killed him. App. Ct. reversed D's conviction and the S. Ct. granted state's petition for writ of certiorari. On Appeal: S. Ct. held that: (1) evidence supported D's conviction for felony manslaughter of police officer shot by D's co-tenant, but (2) evidence did not support D's second felony manslaughter conviction arising from police shooting of D's co-tenant. Affirmed in part, reversed in part, and remanded. a. all coconspirators in the felony can be charged with felony manslaughter for any victims killed during the commission of the felony b. rationale similar to Kalathakis case, supra, when talking about the shooting of the police officer - shooter is a co-criminal with D during the related crime, and D may not even be present at the killing N.B.: agency theory of liability - the doctrine of felony murder does not extend to a killing, although growing out of commission of a felony, if directly attributable to the act of one other than the defendant or those associated with him in the unlawful enterprise THIS IS WHAT WE USE IN LA! E. Negligent homicide: La. R.S. 14:32. Negligent homicide A. Negligent homicide is the killing of a human being by criminal negligence. B. The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence. C. Whoever commits the crime of negligent homicide shall be imprisoned with or without hard labor for not more than five years, fined not more than five thousand dollars, or both. However, if the victim was killed as a result of receiving a battery and was under the age of ten years, the offender shall be imprisoned at hard labor, without benefit of probation or suspension of sentence, for not less than two nor more than five years. 1. State v. McFerson, 583 So.2d 516 (La. App. 3d Cir. 1991) D soldier was convicted of negligent homicide for a shooting in a crowded bar where he took a gun, and D appealed. On Appeal: App. Ct. held that: (1) trial court not required to grant mistrial when juror stated that person would be guilty of crime if he went into alcoholic beverage establishment with gun and for some reason the gun discharged and someone was killed; (2) trial judge was not required to grant pretrial motion for a continuance when D did not receive written statements of two of State's witnesses until five days before trial; (3) testimony that bullet which killed victim also grazed another person did not constitute inadmissible other crimes evidence; and (4) evidence was sufficient to
sustain conviction for negligent homicide where D brought loaded gun into crowded bar and it discharged, killing innocent victim, when D pulled gun out of his pants pocket. Affirmed. a. criminal negligence is not a crime itself, but it's conduct that can lead to negligent homicide F. Vehicular homicide: La. R.S. 14:32.1. Vehicular homicide A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance, whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exists: (1) The operator is under the influence of alcoholic beverages as determined by chemical tests administered under the provisions of R.S. 32:662. (2) The operator's blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood. (3) The operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964. (4) The operator is under the influence of alcoholic beverages and has fled the scene of the accident. (5) The operator is under the influence of a combination of alcohol and one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription and the label on the container of the prescription drug or the manufacturer's package of the drug contains a warning against combining the medication with alcohol. (6) The operator is under the influence of one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription and the influence is caused by the operator knowingly consuming quantities of the drug or drugs which substantially exceed the dosage prescribed by the physician or the dosage recommended by the manufacturer of the drug. B. Whoever commits the crime of vehicular homicide shall be fined not less than two thousand dollars nor more than fifteen thousand dollars and shall be imprisoned with or without hard labor for not less than two years nor more than twenty years. At least one year of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The court shall require the offender to participate in a courtapproved substance abuse program or a court-approved driver improvement program, or both. All driver improvement courses required under this Section shall include instruction on railroad grade crossing safety. a. alcohol level used to be 0.1 - raised recently 1. State v. Taylor, 463 So.2d 1274 (La. 1985) D was accused of vehicular homicide, and CDC judge declared the vehicular homicide statute unconstitutional. State appealed. On Appeal: S.Ct. held that causation between the death of a human being and D's operation of a vehicle while having an unlawful blood alcohol content was not
presumed by the statute but had to be proved by the State. Reversed and remanded. a. distinguished DWI statute, negligent homicide statute, and vehicular homicide statute (1) DWI statute punishes you for the risk of harm you create (2) vehicular homicide statute punishes you for harming others while you operate a vehicle while drunk (more stringent punishment for combined offense) (3) negligent homicide statute punishes you for death caused by criminal negligence (activity outside the scope of reasonable behavior) 2. State v. Archer, 619 So.2d 1071 (La. App. 1st Cir. 1993) D was convicted of vehicular homicide on the basis of a positive blood alcohol, even though the other driver was speeding and also drunk, and D appealed. On Appeal: App. Ct. held that evidence did not establish that D's unlawful blood alcohol concentration combined with his operation of van to cause victim's death. Conviction and sentence reversed. a. both drivers were drunk, but D had a green arrow b. traditional proximate cause would reason that it was foreseeable that D's drinking would cause an accident - however, it is reasonable to turn when you have a green arrow c. it is not enough that you are drunk and driving and there's a death - the state must prove that the drunken driving caused the accident IV. Assault & Battery: A. B. Aggravated battery: 1. State v. Howard, 624 So. 2d 1277 (La. App. 3d Cir. 1993) D was convicted of aggravated battery and appealed. On Appeal: App. Ct. held that prosecution failed to prove that D intentionally inflicted force or violence with dangerous weapon, and, thus, evidence was insufficient to sustain aggravated battery conviction. Conviction reversed; acquittal ordered; D discharged. a. La. R.S. 14:34. Aggravated battery - Aggravated battery is a battery committed with a dangerous weapon. Whoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both. La. Crim. Code Art. 814(14) Aggravated Battery: Guilty. Guilty of second degree battery. Guilty of simple battery. Not guilty. 2. State v. Munoz, 575 So. 2d 848 (La. App. 5th Cir. 1991) D was convicted of aggravated battery. He kicked victim with a sneakered foot so hard that victim was lifted off the ground. D appealed. On Appeal: App. Ct. held that: (1) tennis shoe was a "dangerous weapon" for purposes of committing aggravated battery, and (2) maximum sentence of ten years at hard labor imposed on 17-year-old first offender for aggravated battery was not excessive. Affirmed. a. La. R.S. 14:02(3) "Dangerous weapon" includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce
death or great bodily harm. b. what if D had a sock on his foot and kicked the sh*t out of someone - is the sock a dangerous weapon? (1) Court stated that "the dangerousness of the instrumentality because of its use is a factual question for the jury" 3. State v. Legendre, 362 So. 2d 570 (La. 1978) District Court denied D's motion to quash, and writ of review was granted. On Appeal: S. Ct. held that where indictment charged D with crime of battery with a dangerous weapon and where, in response to D's motion for bill of particulars asking what was dangerous weapon he allegedly used, State replied "Concrete on Parking Lot," indictment failed to charge crime in the manner required by law, as concrete parking lot did not constitute a dangerous weapon. Ruling reversed and set aside and case remanded. a. one judge filed dissenting opinion and would grant a rehearing b. can concrete be used specifically as a dangerous weapon - sure, depends on the facts 4. State v. Calvin, 24 So. 2d 467 (La. 1945) D was tried for disturbing the peace and aggravated battery. The D.A. dropped the disturbing the peace and jury found D guilty of aggravated battery. He was sentenced to seven years at hard labor in the penitentiary. On Appeal: S. Ct. held that it knew of no authority of law, or decision of this Court, nor has any been cited by the State - which classes one's bare hands or teeth as a dangerous weapon. Therefore, since the State had not specified a "deadly weapons" other than the person's body, the conviction was reversed and remanded for a new trial. a. need to have an "inanimate instrumentality" b. old "outdated" case, you would argue c. what about false teeth - is that second-degree battery? (1) is this a dangerous weapon? - no La. S. Ct. decision on a case like this yet (a) analyze R.S. 14:03(2) and the facts of the case to try to argue it (b) argue whether it's really an inanimate object or part of the body (2) is there more severe risk of harm from false teeth or real teeth C. second degree battery: 1. State v. Robinson, 549 So. 2d 1282 (La. App. 3d Cir. 1989) D was convicted, after jury trial, of second-degree battery. Court adjudicated D a third felony offender, and D appealed from both conviction and adjudication. On Appeal: App. Ct. held that: (1) bill of information fairly informed D of charge against him; (2) evidence supported D's conviction for second-degree battery; (3) record did not permit review of D's ineffective assistance of counsel claim; (4) trial court was required to inform D of his right to remain silent before accepting his confession to two prior convictions; and (5) evidence failed to support D's adjudication as third felony offender. Conviction for second-degree battery affirmed; adjudication as third felony offender vacated; sentence set aside; case remanded. La. R.S. 14:33. Battery defined - Battery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another. a. "force or violence" can be a dog sicced on someone b. spit can be both "force or violence" and "noxious liquid" (see Lachney, infra) c. remember to look for touching or for causing a touching, sort of just like torts law La. R.S. 14:34.1. Second degree battery - Second degree battery is a battery committed
without the consent of the victim when the offender intentionally inflicts serious bodily injury. For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death. Whoever commits the crime of second degree battery shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both. a. no mentioned of weapon or dangerous weapon b. serious bodily injury (not intention to, but actual infliction of) c. serious bodily injury, etc.: (1) broken arm - pain, disfigurement, etc. (2) knock them out - unconsciousness, etc. (3) etc... clearly a fact question - present evidence to the jury D. Simple battery: 1. State v. Lachney, 621 So. 2d 846 (La. App. 5th Cir. 1993) D was convicted of simple battery. D appealed. App. Ct. held that: (1) act of person spitting on another constitutes criminal battery; (2) evidence in the case was sufficient to sustain conviction; (3) record was insufficient to determine whether condition of probation was properly imposed, inasmuch as probation and prison term for single misdemeanor were not authorized; and (4) clarification was required of sentence which was ambiguous. Affirmed and remanded. E. Aggravated assault: 1. State in the Interest of Cortez, 319 So. 2d 496 (La. App. 4th Cir. 1975) In proceeding to adjudge D child delinquent for aggravated assault, District Court rendered judgment and child appealed. On Appeal: App. Ct. held that evidence as to whether school principal was in reasonable apprehension of battery when student, whom principal ordered off school grounds, produced Barlow knife and later threatened principal from across road, was sufficient to sustain judgment. Affirmed. La. R.S. 14:37. Aggravated assault A. Aggravated assault is an assault committed with a dangerous weapon. B. Whoever commits an aggravated assault shall be fined not more than one thousand dollars or imprisoned for not more than six months, or both. C. If the offense is committed upon a store's or merchant's employee while the offender is engaged in the perpetration or attempted perpetration of theft of goods, the offender shall be imprisoned for not less than one hundred twenty days without benefit of suspension of sentence nor more than six months and may be fined not more than one thousand dollars. 2. State v. Johnston, 20 So. 2d 741 (La. 1944) D was convicted of assault with a dangerous weapon, a revolver, and he appeals. On Appeal: A "dangerous weapon", under the codal definition, is not necessarily an instrumentality that can or will, without intervening circumstance, produce death or great bodily harm, but it is any instrumentality which in manner used is likely to produce death or great bodily harm. Affirmed. a. An unloaded revolver which defendant pointed and clicked in a hostile manner at persons assembled in private home and which had appearance of being in good working condition was a "dangerous weapon" for purposes of the assault statute,
justifying conviction of "assault with a dangerous weapon". F. Simple assault: 1. State v. Johnson, 592 So. 2d 818 (La. App. 5th Cir. 1991) D was convicted of possession of marijuana and simple assault following trial and he appealed. On Appeal: App. Ct. held testimony of arresting officer that D was "constantly swinging around" and threatening the officer was sufficient to sustain conviction for simple assault. Affirmed. La. R.S. 14:38. Simple assault - Simple assault is an assault committed without a dangerous weapon. Whoever commits a simple assault shall be fined not more than two hundred dollars, or imprisoned for not more than ninety days, or both. ADD STATUTES FOR ASSAULT BY DRIVEBY SHOOTING and Aggravated 2nd deg battery??? V. Sexual Offenses: A. Rape - La. R.S. 14:41 et seq. 1. aggravated rape - life imprisonment or death 2. forcible rape - 5 to 40 years (mandatory 2 years served) a. can the judge suspend a 5 year sentence? not all of it - you have to serve 2 years 3. simple rape - 0 to 25 years 4. statutory rape - 0 to 10 years - carnal knowledge of a juvenile (La. R.S. 14:80) - most 1st time offenders in La. get jail time - they usually plead and get no jail time B. aggravated rape - 7 ways to commit aggravated rape 65 years old or older victim resists and is overcome by force victim is prevented from resisting by threats of great and immediate bodily harm victim is prevented from resisting & offender is armed with a dangerous weapon victim is under the age of 12 years (a capital offense) two or more offenders participated in the act victim is prevented from resisting the act because victim suffers from a physical or mental infirmity preventing such resistance La. R.S. 14:41. Rape; defined A. Rape is the act of anal or vaginal sexual intercourse with a male or female person committed without the person's lawful consent. B. Emission is not necessary and any sexual penetration, vaginal or anal, however slight is sufficient to complete the crime. La. R.S. 14:42. Aggravated rape A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances: (1) When the victim resists the act to the utmost, but whose resistance is overcome by force. (2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon. (4) When the victim is under the age of twelve years. Lack of knowledge of the victim's age shall not be a defense. (5) When two or more offenders participated in the act. (6) When the victim is prevented from resisting the act because the victim suffers from a physical or mental infirmity preventing such resistance. B. For purposes of Paragraph (5), "participate" shall mean: (1) Commit the act of rape. (2) Physically assist in the commission of such act. C. For purposes of this Section, the following words have the following meanings: (1) "Physical infirmity" means a person who is a quadriplegic or paraplegic. (2) "Mental infirmity" means a person with an intelligence quotient of seventy or lower. D. (1) Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. (2) However, if the victim was under the age of twelve years, as provided by Paragraph A(4) of this Section: (a) And if the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury. The provisions of C.Cr.P. Art. 782 relative to cases in which punishment may be capital shall apply. (b) And if the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The provisions of C.Cr.P. Art. 782 relative to cases in which punishment is necessarily confinement at hard labor shall apply. 1. State v. Jackson, 601 So. 2d 730 (La. App. 5th Cir. 1992) D went into woman's house and took her own gun from her and committed a forcible rape at gunpoint and threatening harm to her child if she didn't submit. D was convicted of aggravated rape (and armed robbery) and sentenced to life at hard labor. He appealed in part on the basis that he should only have been convicted of forcible rape. On Appeal: App. Ct. determined that presence of gun specifically took this crime into the statute on aggravated rape. Affirmed. 2. State v. Gallien, 613 So. 2d 1145 (La. App. 5th Cir. 1993) D was convicted of two counts of aggravated rape, since he had a knife (dangerous weapon). He appealed on the basis that it was forcible rape under the evidence. a. statute La. R.S. 14:42 does not necessarily mandate victim's resisting 3. State v. Crawford, 619 So. 2d 828 (La. App. 1st Cir. 1993) D was charge with aggravated rape and was convicted of the responsive offense of attempted aggravated rape. Jury found intent, but facts did not support the verdict of actual rape (need penetration per statute, and apparently that was questionable). D appealed that he was drunk and there was no intent. On Appeal: App. Ct. affirmed jury's finding that in spite of his intoxication, he had intent to commit the crime. a. for attempted crime, combine the attempt statute with the crime statute 4. State v. Lewis, 577 So. 2d 799 (La. App. 2d Cir. 1991)
Man accosted biker with a knife, partially entered, and then was frightened away. Man was found guilty of aggravated rape. On Appeal: App. Ct. affirmed jury verdict, leaving credibility of the witness (victim who claimed "slight penetration") to the jury. a. testimony of victim can be enough evidence of elements of rape (e.g. penetration) B. Forcible rape: 1. State v. Powell, 438 So. 2d 1306 (La. App. 3d Cir. 1983) D was convicted of forcible rape, and he appealed. On Appeal: App. Ct. held that evidence was insufficient to sustain D's conviction. La. R.S. 14:42.1. Forcible rape A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances: (1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape. (2) When the victim is incapable of resisting or of understanding the nature of the act by reason of stupor or abnormal condition of the mind produced by a narcotic or anesthetic agent or other controlled dangerous substance administered by the offender and without the knowledge of the victim. B. Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence. 2. State v. Simmons, 621 So. 2d 1135 (La. App. 4th Cir. 1993) Reverend brought 14 year old girl to a hotel across the street from the N.O. Baptist Seminary. D tried to have sex with the girl but was unable. The prosecutor tried for forcible rape and the jury convicted. Trial court reduced to sexual battery and State appealed. On Appeal: Sexual battery verdict was affirmed. There was no proof of penetration, so trial court's lesser verdict was upheld. a. prosecution could have pushed for "statutory rape" (La. R.S. 14:80 - D over 17 years old and has consensual sex with victim who is 12 years old up to less than 17 years old, and there is an age difference of over 2 years and they are not married (1) need to put evidence of D's age in this case - must be entered into the record (or at least taken on judicial notice - this guy was a pastor, had kids 14 years of age, etc. - he's clearly over 17 years of age) La. R.S. 14:43.1. Sexual battery A. Sexual battery is the intentional engaging in any of the following acts with another person, who is not the spouse of the offender, where the offender acts without the consent of the victim, or where the other person has not yet attained fifteen years of age and is at least three years younger than the offender: (1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or (2) The touching of the anus or genitals of the offender by the victim using
any instrumentality or any part of the body of the victim. B. Lack of knowledge of the victim's age shall not be a defense. However, where the victim is under seventeen, normal medical treatment or normal sanitary care of an infant shall not be construed as an offense under the provisions of this Section. C. Whoever commits the crime of sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years. N.B.: Don't worry about the various forms of sexual battery, just what the basic definition is. C. Simple rape: 1. State v. Rogers, 772 So. 2d 960 (La. App. 5th Cir. 2000) D was convicted of simple rape. Victim was drunk, but alcohol was not administered by D (victim was drunk after a wedding, and D took advantage of victim). D appealed. On Appeal: App. Ct. held that: (1) evidence was sufficient to support the D's conviction for simple rape, and (2) prosecutor's comment in asking officer whether defense had access to physical evidence collected in rape case did not directly or indirectly refer to D's failure to testify, so as to support motion for mistrial. Affirmed and remanded. a. since EtOH was not administered by perpetrator, it's only simple rape, not forcible rape La. R.S. 14:43. Simple rape A. Simple rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a victim who is not the spouse of the offender because it is committed under any one or more of the following circumstances: (1) When the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause, other than the administration by the offender of any narcotic or anesthetic agent or other controlled dangerous substance and the offender knew or should have known of the victim's incapacity. (2) When the victim is incapable, through unsoundness of mind, whether temporary or permanent, of understanding the nature of the act and the offender knew or should have known of the victim's incapacity. (3) When the female victim submits under the belief that the person committing the act is her husband and such belief is intentionally induced by any artifice, pretense, or concealment practiced by the offender. B. For purposes of this Section, a person shall not be considered to be a spouse if a judgment of separation from bed and board has been rendered, or if the person and the offender are not legally separated but are living separate and apart and the offender knows that a temporary restraining order, preliminary or permanent injunction, or other order or decree has been issued prohibiting or restraining the offender from sexually or physically abusing, intimidating, threatening violence against, or in any way physically interfering with the person. C. Whoever commits the crime of simple rape shall be imprisoned, with or without hard labor, without benefit of parole, probation, or suspension of
sentence, for not more than twenty-five years. a. if drug is given by the offender, it's forcible rape b. basically, simple rape is defined by rape committed when the victim's mind is in some way altered/fooled c. statute is sex specific - if a female takes unconsented advantage of a male, it can be sexual battery (with lesser sentence - 0-10 years) d. is this constitutional? equal protection? (see infra, case on statutory rape & gender) La. R.S. 15:438. Circumstantial evidence The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. 2. State v. Brown, 788 So.2d 694 (La. App. 5th Cir. 2001) D was convicted of simple rape and sentenced to ten years imprisonment at hard labor. D appealed. On Appeal: App. Ct. held that: (1) evidence was sufficient to find that D committed simple rape; (2) probative value of evidence of co-D's participation as an accomplice in D's previous crime of felony theft outweighed its prejudicial effect; (3) D's sentence was not excessive; and (4) trial court's failure to observe 24 hour delay between denial of motion for new trial and the imposition of sentence constituted error patent. Conviction affirmed, sentence vacated, and remanded for resentencing. 3. State v. McDowell, 427 So. 2d 1346 (La. App. 2d Cir. 1983) D was convicted of simple rape of a 71-year-old senile victim, and he appealed. On Appeal: App. Ct. held that: (1) finding that D had capacity to proceed was not error; (2) showing that D's inculpatory and exculpatory oral statements were freely and voluntarily made was not overcome; (3) it was not reversible error to refuse charge that everyone is presumed sane and of sound mind; (4) failure to instruct that understanding and not age must determine whether any person tendered as a witness shall be sworn was not error; (5) it was not error to deny requested charge on consensual intercourse by adults; and (6) sentence of 20 years at hard labor was not excessive. Affirmed. a. can senile victim be competent to testify? 1. insanity is not the same as incompetent - competency = ability to understand right from wrong - insanity = not in right mind 4. State v. Peters, 441 So. 2d 403 (La. App. 4th Cir. 1983) D was convicted of simple rape of 29 year-old retarded victim, and he appealed. On Appeal: App. Ct. held that: (1) while assistant district attorney's comments before questioning jurors on voir dire far exceeded permissible introductory remarks, it did not prejudice jury; (2) photographs used in lineup from which victim identified D were admissible; (3) admission of perpetuated testimony of witness in absence of showing by State that he was unavailable was harmless error; (4) mentally retarded victim's responses to questions concerning truth of her statements were sufficient to constitute affirmation; and (5) evidence was sufficient to support conviction. Affirmed. 5. State v. Wilkinson, 772 So. 2d 758 (La. App. 5th Cir. 2000) D was convicted in a jury trial of simple rape of 14-year-old victim who was walking home from school. Victim had identified BellSouth employee who was working in the area as the rapist. D appealed. On Appeal: App. Ct. held that: (1) evidence was sufficient to support a conviction for charged offense of forcible rape; (2) hospital records of victim's mental history were not properly authenticated; (3) victim's written police statement was not admissible to
attack victim's credibility; and (4) 20-year sentence was not excessive. Affirmed. a. La. R. Crim. Evid. art. 412 - Rape-Shield Statute - inability to bring in past sexual behavior of the victim, absent any other compelling reason (i.e. for rebuttal, etc. Fairness Provision, Article 102) b. trying a rape case - witnesses called: 1. woman who picked victim up off of the street 2. Detective - investigator who investigated facts 3. victim 4. Detective - another investigator 5. Pamela Williams - forensic scientist - receives and processes rape kit evidence 6. Julia Golden - forensic scientist - DNA expert for addition evidence 7. John Banquer - BellSouth - identified the accused as worker in the area 8. Dr. McCaslin - ER pediatrician who examined victim 9. Defendant - testified - waived his 5th Amendment rights (a) if D testifies, you can figure he had no priors, or they would be brought up and it would look bad to the jury c. Responsive verdicts to Forcible Rape (La. R.S. 14:814(10)) 1. Guilty 2. Guilty of attempted forcible rape. 3. Guilty of simple rape. 4. Guilty of attempted simple rape. 5. Guilty of sexual battery. 6. Not guilty. - if you don't object, and if the evidence supports the charge, the responsive verdict can be allowed to stand 6. State v. Bell, State v. Roberts, 377 So. 2d 303 (La. 1979) Petition by one D for certiorari following order of District Court denying motion to quash bill of information was consolidated with appeal by State from order of the District Court sustaining a similar motion by a second D. On Appeal: S. Ct. held that protection of young females from pregnancy, from possible injury to their reproductive systems as well as possibility of lingering mental impairment, is a legitimate area of state concern justifying sex classification involved in statute making it a crime for a male over the age of 17 to have consensual sexual intercourse with any unmarried female of the age of 12 years or more, but under the age of 17 years, when there is an age difference of greater than two years between the two persons. Affirmed in part, reversed in part, and remanded. La. R.S. 14:80. Felony carnal knowledge of a juvenile A. Felony carnal knowledge of a juvenile is committed when: (1) A person who is nineteen years of age or older has sexual intercourse, with consent, with a person who is twelve years of age or older but less than seventeen years of age, when the victim is not the spouse of the offender; or (2) A person who is seventeen years of age or older has sexual intercourse, with consent, with a person who is twelve years of age or older but less than fifteen years of age, when the victim is not the spouse of the offender; or (3) A person commits a second or subsequent offense of misdemeanor carnal knowledge of a juvenile, or a person who has been convicted one or more times of violating one or more crimes for which the offender is required to register as a sex offender under R.S. 15:542 commits a first
offense of misdemeanor carnal knowledge of a juvenile. B. As used in this Section, "sexual intercourse" means anal, oral, or vaginal sexual intercourse. C. Lack of knowledge of the juvenile's age shall not be a defense. Emission is not necessary, and penetration, however slight, is sufficient to complete the crime. D. Whoever commits the crime of felony carnal knowledge of a juvenile shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not more than ten years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893. a. if there is no consent, statutory rape is an improper charge (go for simple rape, forcible rape, etc.) b. this is a sexual offender charge - conviction means you have to register as a sex offender, etc. c. prosecutor has discretion - lots of these are pled and get probation - jury can acquit or judge can be lenient (discretion between 0 to 10 years) VI. Kidnapping: A. General: 1. prior La. law provided for death penalty for aggravated kidnapping 2. current law: punishable by imprisonment at hard labor without parole, probation or suspension of sentence 3. La. Crim. Code in 1942 defined aggravated and simple kidnapping - in 1989, new offense of second degree kidnapping was codified, covering using victims as shields, hostages, facilitating commission of felony, injuring or physically abusing victim, or holding victim for 72 hours or if kidnapper was armed with dangerous weapon 4. differentiating the various kidnapping levels: a. aggravated = intent to ransom or extort from the victim or others b. second degree = weapon, sex, shield or hostage, facilitating escape, 72 hours - i.e. violence, felony or unrelated other things (no intent to distort) c. simple = taking someone without harming, ransoming, etc., without consent - "traditional" kidnapping without extortion, violence, etc. - in child cases, there must be a court order that is avoided by leaving the state d. interference with custody of child = by a parent from a parent (custody question) anywhere (including out of the state) e. there are also criminal false arrest/imprisonment statutes are not covered here. . . . B. Aggravated kidnapping: La. R.S. 14:44. Aggravated kidnapping Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity in order to secure a release of the person under the offender's actual or apparent control: (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. Whoever commits the crime of aggravated kidnapping shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension
of sentence. a. no judicial discretion on the life imprisonment sentence for aggravated kidnapping b. 3 ways to aggravatedly kidnap: force, entice or imprison, all with the intent to extort something of value N.B.: The penalty provisions are for informational purposes. These will not be on the test. 1. State v. Dupre, 369 So. 3d 1303 (La. 1979) D was convicted by a jury of two counts of aggravated kidnapping, and D appealed. D and accomplice took victim from shopping center, held her at gunpoint, and drove her to another parish and raped her (twice). Appeal was based, inter alia, on judge's instruction to the jury that having sex was something "of value" for the purposes of the aggravated kidnapping statute. On Appeal: S. Ct. held that: (1) no error occurred in overruling D objections to references made by State to aggravated rape of first victim; (2) under circumstances, trial judge did not commit reversible error during charging of jury when he inadvertently stated that D was on trial for aggravated rape; (3) no error occurred in denying D's motion for mistrial because of reference made, during cross-examination of a psychiatrist testifying for D, to charges pending against D for aggravated rape; (4) no error occurred in admitting in evidence D's inculpatory statement made to police, and (5) under circumstances, D was not prejudiced by trial court's failure to read general definition of "anything of value" as provided in applicable statute. Affirmed. a. anything of value: La. R.S. 14:2(2) - "Anything of value" must be given the broadest possible construction, including any conceivable thing of the slightest value, movable or immovable, corporeal or incorporeal, public or private, and including transportation, telephone and telegraph services, or any other service available for hire. It must be construed in the broad popular sense of the phrase, not necessarily as synonymous with the traditional legal term "property." In all cases involving shoplifting the term "value" is the actual retail price of the property at the time of the offense. b. case stands for the fact that sexual relations constitute "anything of value" for the purposes of aggravated kidnapping statute La. R.S. 14:44 La. R.S. 14:66. Extortion Extortion is the communication of threats to another with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity of any description. The following kinds of threats shall be sufficient to constitute extortion: (1) A threat to do any unlawful injury to the person or property of the individual threatened or of any member of his family or of any other person held dear to him; (2) A threat to accuse the individual threatened or any member of his family or any other person held dear to him of any crime; (3) A threat to expose or impute any deformity or disgrace to the individual threatened or to any member of his family or to any other person held dear to him; (4) A threat to expose any secret affecting the individual threatened or any member of his family or any other person held dear to him; (5) A threat to do any other harm. Whoever commits the crime of extortion shall be imprisoned at hard labor for not less than one nor more than fifteen years.
2. State v. Arnold, 548 So. 2d 920 (La. 1989) Following a jury trial, D was convicted of attempted aggravated rape, aggravated crime against nature, attempted second-degree murder, and aggravated kidnapping, and D appealed, on the basis that he did not communicate to the victim that he was going to let her go after the rape, thus not satisfying the fourth element of aggravated kidnapping (see infra). App. Ct. reversed the sentence for aggravated kidnapping. On Appeal: S. Ct. held that it was reasonable to believe that victim had complied with D's sexual demand in the hope of being released, and that there need not be proof of actual communication of the kidnapper to the victim about that (i.e. the kidnapper does not have to tell the victim specifically that he will release her if he can have sex with her - it can be inferred by the actions). Affirmed in part and reversed in part. a. elements of aggravated kidnapping: (1) forcible seizing (of person) (2) carrying of person from one place to another (asportation element) (3) intent to force the victim or another person to give up something of apparent value or prospective value (extortion element) (4) in order to secure the release of the victim b. this case stands for the concept that the fourth element, regarding releasing the victim after the price is "paid" (e.g. after a rape is accomplished) does not actually have to be communicated to the victim - the record simply needs evidence that it is the kidnapper's intent to hold the victim until the receipt of some sort of "something of value" c. good discussion of the history of kidnapping statutes d. J. Calogero (dissenting in part) - good argument for insufficiency of evidence e. reasonable statement about the asportation element - see fn. 4 and p. 308 - the relevance of asportation is to isolate the victim and increase the risk of harm 3. responsive verdicts for aggravated kidnapping: a. La. R.S. 14:814(18). Aggravated kidnapping: (1) Guilty. (2) Guilty of attempted aggravated kidnapping. (3) Guilty of second degree kidnapping. (4) Guilty of attempted second degree kidnapping. (5) Guilty of simple kidnapping. (6) Guilty of attempted simple kidnapping. (7) Not guilty. B. Second degree kidnapping: La. R.S. 14:44.1. Second degree kidnapping 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 dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon. B. For purposes of this Section, kidnapping is:
a. b. c. d.
(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. C. Whoever commits the crime of second degree kidnapping shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence. same 3 actions as aggravated kidnapping: force, entice, imprison difference from aggravated kidnapping is how the victim is used A(4) leads to anomalous results in parental kidnapping moving from one place to another must be such that the risk is increased for victim
1. State v. Robinson, 780 So. 2d 1213 (La. App. 2d Cir. 2001) D was convicted of second-degree kidnapping of two victims, when he was looking for witnesses to his brother's murder. He had stopped two witnesses and tied them up in a warehouse for questioning. D appealed. On Appeal: App. Ct. held that: (1) evidence was insufficient to support conviction for kidnapping victim who asserted Fifth Amendment privilege against selfincrimination; (2) evidence was sufficient to support conviction for kidnapping second victim; (3) allegedly new and material evidence did not warrant new trial on charge of kidnapping second victim; and (4) evidence support habitual offender adjudication. Affirmed in part and reversed in part. a. legal conviction only warranted if State proves corpus delicti - suspicion, rumor, gossip, or mere hearsay evidence is insufficient (1) victim's testimony is sufficient - hearsay is not - in this case, victim asserted 5th Amendment right to silence because he was afraid of implication in a shooting for which D was looking for witnesses (to avenge his murdered brother) 2. State v. Baker, 796 So. 2d 145 (La. App. 2d Cir. 2001) Ds were convicted of second degree kidnapping and attempted forcible rape, and Ds appealed. On Appeal: App. Ct. held that: (1) evidence was sufficient to support second degree kidnapping conviction; (2) evidence was sufficient to support attempted forcible rape conviction; (3) race neutral reasons for state's peremptory challenges against 18 African-Americans were apparent from voir dire examination; (4) even if trial court erred in denying Ds' request for victim's rap sheet, Ds failed to show prejudice; (5) D were not entitled to jury instructions on sexual battery and criminal mischief; and (6) sentencing D to two and one-half years at hard labor for attempted forcible rape and to five years at hard labor for second degree kidnapping, sentences to run concurrently, was not constitutionally excessive. Affirmed. 3. State v. Reese, 774 So. 2d 1164 (La. App. 2d Cir. 2000) D was convicted of second degree kidnapping, and he appealed, claiming an insanity defense and that he did not kidnap his ex-wife and bring her anywhere, yada, yada. On Appeal: App. Ct. held that: (1) D failed to prove by preponderance of evidence that he was incapable of distinguishing between right and wrong at time of offense; (2) evidence was sufficient to support conviction; and (3) sentencing D to ten years at hard labor was not constitutionally excessive. Affirmed as amended. a. basically, the App. Ct. noted the either/or language of La. R.S. 14:41.1, and that D did not have to carry victim somewhere else, merely hold her hostage with a deadly weapon (as in White, infra)
4. State v. White, 593 So. 2d 882 (La. App. 2d Cir. 1992) Jury found D guilty of armed robbery and second degree kidnapping, and he was given concurrent sentences of 33 years at hard labor and 20 years at hard labor. D appealed based on the fact that he did not carry the victim to another location and he did not keep the victim prisoner for over 72 hours. D had tied an old man up in a vacant house, beat him in the head with his gun, and stole his car. On Appeal: App. Ct. affirmed both convictions and sentences. The court pointed out that the statute was and either/or statute, and that D had forcibly imprisoned the victim and that D had a dangerous weapon (shotgun). Therefore, the statutory requirements of La. R.S. 14:44.1 were met (14:44.1(A)(5) and 14:44.1(B)(3)). Victim was also physically injured. (La. R.S. 14:44.1(A)(3)). 5. State v. Acevedo, 633 So. 2d 828 (La. App. 4th Cir. 1994) D was convicted of aggravated kidnapping and D appealed, requesting review of errors patent, and conviction and sentence were affirmed. D filed application for postconviction relief on basis of ineffective assistance of counsel, and App. Ct. ordered new appeal. D appealed challenged sufficiency of evidence supporting conviction. On Appeal: App. Ct. held that evidence was insufficient for rational juror to find that extortion element of aggravated kidnapping was met. Reversed and rendered, release ordered. C. Simple kidnapping: La. R.S. 14:45. Simple kidnapping A. Simple kidnapping is: (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 orphan, insane, feeble-minded 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. B. Whoever commits the crime of simple kidnapping shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than five years, or both. a. intentional & forcible seizing and moving from one place to another b. intentional child theft (decoying away) - don't have to "move"? c. intentional taking away from an institution (move out of the institution) d. taking from the state one's child in violation of court order to defeat jurisdiction - the parent e. child is placed in D's custody and D takes child out of state to defeat jurisdiction - not the parent
1. State v. Ellender, 583 So. 2d 1191 (La. App. 1st Cir. 1991) D was convicted in of simple kidnapping, and he appealed. D got into victim's care and forced her to take him, and she started to take him to the police station and he jumped out. D appealed on the argument he wasn't driving - he couldn't take her from one place to another and she didn't go where he told her to. On Appeal: App. Ct. held that: (1) prospective juror's comment, that if D did not take witness stand, she might wonder whether D had been previously convicted of another offense, might have provided justifiable basis for exercise of challenge for cause to that prospective juror, but did not warrant declaration of mistrial; (2) prospective juror's comment did not require dismissal of entire panel; (3) evidence supported conviction. Affirmed. a. case stands for the prospect that you don't need to actually drive the car, don't need to have a gun - just need to force the victim... 2. Rykers v. Alford, 832 F.2d 895 (5th Cir. 1987) Father sued mother of his child, police officer, United States and several federal officials for damages connected with father's arrest for allegedly kidnapping his child. District Court dismissed all claims, and father appealed. On Appeal: App. Ct. held that: (1) federal prosecutors enjoyed absolute immunity; (2) FBI agents acting on facially valid arrest warrant were absolutely immune from suit; (3) police officer who obtained warrant to arrest father for parental kidnapping was protected by qualified immunity; and (4) father's state law claims against mother for deprivation of parental rights and malicious prosecution were subject to dismissal pursuant to domestic relations exception. Affirmed. a. case stands for concept that parent bringing the action must be custodial parent b. La. parental kidnapping statute does not allow prosecution until there is a court order granting custody to the other parent 3. State v. Belcher, 793 So. 2d 262 (La. App. 2d Cir. 2001) D was convicted of attempted simple kidnapping. D appealed. On Appeal: App. Ct. held that: (1) evidence was sufficient to establish that D committed the crime of attempted simple kidnapping, and (2) D's suspended sentence of 18 months at hard labor, and supervised probation for 18 months was not excessive. Affirmed. 4. State v. Arceneaux, 695 So. 2d 1148 (La. App. 3d Cir. 1997) D was convicted on his plea of no contest, of kidnapping, and he appealed denial of his motion to quash. He had kidnapped his child and kept for 12 years from mother. On Appeal: App. Ct. held that: (1) ex parte order initially granting mother provisional custody of parties' child was enforceable and was proper basis for prosecution for parental kidnapping, and (2) sentence was illegal. Affirmed and remanded with instructions. a. case stands for concept that a provisional custody order is enough to satisfy the parental kidnapping clause (La. R.S. 14:45(A)(4)) D. Interference with the custody of a child: 1. State v. Sciortino, 724 So. 2d 258 (La. App. 4th Cir. 1998) D was convicted of attempted intentional interference of custody. Mother was not present at the custody hearing where father was granted sole custody of girls. D therefore appealed on the basis that she didn't know she had no visitation rights (and only evidence available to the contrary was father's hearsay). The Criminal District Court Appellate Division reversed. On Appeal: App. Ct. held that: (1) there was some evidence that D intended to take her children from the parent with legal custody, as would support conviction for
attempted intentional interference of custody; (2) father's statement as to whether his attorney served defendant with copy of judgment was inadmissible hearsay; and (3) error in admitting hearsay evidence was not harmless. Remanded for new trial. a. there was a sufficiency argument and the record was not clear, so it was remanded for a new trial - if there would have been a clear record and the trial court was in error, the App. Ct. could reverse and render/acquit La. R.S. 14:45.1. Interference with the custody of a child A. Interference with the custody of a child is the intentional taking, enticing, or decoying away of a minor child by a parent not having a right of custody, with intent to detain or conceal such child from a parent having a right of custody pursuant to a court order or from a person entrusted with the care of the child by a parent having custody pursuant to a court order. It shall be an affirmative defense that the offender reasonably believed his actions were necessary to protect the welfare of the child. B. Whoever commits the crime of interference with the custody of a child shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both. Costs of returning a child to the jurisdiction of the court shall be assessed against any defendant convicted of a violation of this Section, as court costs as provided by the Louisiana Code of Criminal Procedure. a. doesn't matter if it's in state or out of state - but once you leave the state, it's simple kidnapping if you had intent to defeat the state's jurisdiction Hypo 1 - Mom has custody of her child, Son, who is 10 years old. Dad takes Son from New Orleans to Shreveport without telling Mom with the intent to keep Son. Son wants to go. What crime, if any, has been committed by Dad? a. interference with the custody of a child - in-state b. clearly not kidnapping - not aggravated, not violent, etc. - except that non-custodial parent may be charged with 2nd degree because of 14:44.1(A)(4)??? Hypo 2 - David, by gunpoint, forces Victoria to go from one house to another, against her will. What crime, if any, has David committed? a. second degree - moving from one place to another with deadly weapon Hypo 3 - Dennis takes Vicki hostage by picking up Vicki who is hitchhiking. Dennis has the intent to rape Vicki. Dennis drives her 5 miles to a secluded area in the country. Vicki escapes. Dennis is arrested. What crime, if any did Dennis commit? a. does he have a weapon? did he harm her at all? b. Hypo 4 - After picking Vicki up in New Orleans while she was hitchhiking, Dennis tricks Vicki into believing that he will drive her to Houston Texas. Instead, D drives Vicki to his home in Vinton, Louisiana, near the Louisiana - Texas border. They arrive at Dennis's home at 5:00 p.m. on Friday. Dennis refuses to let her go and locks Vicki up overnight in a bedroom. The next morning he decides to let her go. He made no threats of bodily injury or of any other harm. What crime did Dennis commit, if any? Hypo 5 - Don picks Sam up on the street, takes him to Don's home and detains him with a toy gun. Sam does not realize that the gun is not real. Don calls Sam's wife and demands $1,000.00 for his release. What crime if any was committed?
Hypo 6 - Jones is a college professor. Harriet, a disgruntled student, walks into his office and says "don't move". Harriet has a gun. Harriet demands that her grade in her communications class be changed to an "A" from an "F" before she will release Jones. Jones changes the grade. What crime, if any was committed by Harriet? Hypo 7 - Abe breaks and enters into the home of Copland, a wealthy Westbank entrepreneur. Abe holds Mrs. Copland hostage and demands one million dollars and a helicopter for her release. What crime has been committed? Hypo 8 - Gabriel robs the Rite Aid Drug Store at the corner of St. Charles and Broadway with a gun. Upon exiting the store, she forces the cashier to accompany her as she makes her getaway. Gabriel drives the cashier 3 miles and tells her to get out. What crimes have Gabriel committed? Hypo 9 - Dad takes his 5 year old son, Junior, from New Orleans to Jackson, Mississippi with the intent to obtain a custody order from the domestic relations judge in Jackson. Mom currently has sole custody of Junior as determined by the family law judge in New Orleans. Junior wants to be with his dad. What crime has Dad committed? VII. Arson A. General: 1. common-law arson - burning of a dwelling house of another a. burning your own house was not arson b. La. statutes expand to include burning of structures, boats, etc., including by use of explosives c. curtilage could be included in common-law arson 2. La. criminal code arson: a. aggravated arson - foreseeable that human life might be endangered b. simple arson - intentional firing or exploding without the consent of another c. arson with intent to defraud - intent to defraud insurance companies, etc. (property can belong to the arsonist or to someone else) B. aggravated arson: La. R.S. 14:51. Aggravated arson Aggravated arson is the intentional damaging by any explosive substance or the setting fire to any structure, watercraft, or movable whereby it is foreseeable that human life might be endangered. Whoever commits the crime of aggravated arson shall be imprisoned at hard labor for not less than six nor more than twenty years, and shall be fined not more than twentyfive thousand dollars. Two years of such imprisonment at hard labor shall be without benefit of parole, probation, or suspension of sentence. 1. State v. Simmons, 443 So. 2d 512 (La. 1983) D was convicted of three counts of simple arson and one count of aggravated arson, and he appealed. On Appeal: S. Ct. held that: (1) D's confession, given approximately four hours after his arrest, was free and voluntary and not result of intoxication; (2) trial court did not abuse its discretion in failing to grant a mistrial after prospective juror who knew D's family was dismissed for cause in front of entire jury venire; (3) evidence corroborated D's confession sufficiently to establish corpus delicti of each crime of which defendant was convicted; and (4) sufficient evidence was introduced to prove the existence of the
intent necessary for conviction of aggravated and simple arson. Affirmed. 2. State v. Bonfanti, 227 So. 2d 916 (La. 1969) D was charged by indictment with aggravated arson and filed motion to quash. District Court sustained D's motion and the state appealed. On Appeal: S. Ct. held that allegation that D had set fire to unoccupied building did not indicate commission of aggravated arson where only lives endangered thereby were those of firemen who could be expected to respond to call to combat fire. Affirmed. a. case stands for the concept that the lives to be protected are the lives of people in the building - not people who may come to rescue, etc. 3. State v. Stanford, 574 So. 2d 443 (La. App. 2d Cir. 1991) D was convicted of aggravated arson and he appealed on the basis that the fire was started with paper and cinder blocks and other things that didn't burn and therefore were not the "movables" anticipated by La. R.S. 14:51. On Appeal: App. Ct. held that statute didn't exclude paper and other types of movables from the legislative intent of the statue. Spare clothing, bedding, bodies, etc. are all flammable items which flames could have spread to ultimately. Affirmed. 4. Responsive verdicts for aggravated arson (La. Crim. Code art. 814(30)): a. Guilty. b. Guilty of simple arson where the damage amounted to five hundred dollares or more. c. Guilty of simple arson wehre the damage amounted to less than five hundred dollars. d. The simple areson verdicts are responsive only if the words "belonging to another and with damage amounting to ---------- dollars" are included in the indictment. e. Not guilty. B. Simple arson: La. R.S. 14:52. Simple arson A. Simple arson is the intentional damaging by any explosive substance or the setting fire to any property of another, without the consent of the owner and except as provided in R.S. 14:51. B. Whoever commits the crime of simple arson, where the damage done amounts to five hundred dollars or more, shall be fined not more than fifteen thousand dollars and imprisoned at hard labor for not less than two years nor more than fifteen years. C. Where the damage is less than five hundred dollars, the offender shall be fined not more than twenty-five hundred dollars or imprisoned with or without hard labor for not more than five years, or both. 1. State v. Murphy, 38 So. 2d 254 (La. 1948) The appellant was prosecuted for the crime of aggravated arson, was convicted of 'simple arson in the sum of $150,' and was sentenced to imprisonment for 7 months. Her principal complaint is that the verdict was not responsive. The objection was made and a bill of exception was reserved when the judge charged the jury that a verdict of guilty of simple arson would be responsive and that if they found the defendant guilty of simple arson they should fix the amount of the damage done. The defendant's objection was repeated in a motion for a new trial, and again in a motion in arrest of judgment. On Appeal: S. Ct. reason why simple arson is not an 'included offense' in the definition of aggravated arson is that the definition of simple arson contains two essential elements which are not included in the definition of aggravated arson, namely, first, that the property damaged must belong to another person, other than the party accused, and, second, that the damaging or setting fire to the property must be done without the consent of the owner. Conviction and sentence annulled, motion in arrest of judgment
sustained, and prosecution ordered dismissed. 2. State v. Lastrapes, 443 So. 2d 652 (La. App. 3d Cir. 1983) D was convicted of simple arson, and she appealed. On Appeal: App. Ct. held that: (1) D was not surprised and, consequently, suffered no prejudice from failure of State to give her written notice of its intent to introduce D's inculpatory tape-recorded statement into evidence; (2) statement by police officer to D that officer would advise D.A. that D had cooperated and would ask D.A. to look into possibility of placing D on probation did not render D's inculpatory tape-recorded statement inadmissible; (3) D's inculpatory statement was not inadmissible on ground that other promises made by officers to defDendant had been obliterated; (4) evidence was sufficient to show that damage to house was done without consent of owner; and (5) two-year sentence imposed under statute proscribing simple arson was not excessive. La. R.S. 14:53. Arson with intent to defraud Arson with intent to defraud is the setting fire to, or damaging by any explosive substance, any property, with intent to defraud. Whoever commits the crime of arson with intent to defraud shall be fined not more than ten thousand dollars, imprisoned with or without hard labor for not more than five years, or both. a. includes property, whether it belongs to the offender or another person b. this is broader than common-law rule, which basically limits to insurance company in some states VIII. Burglary A. Burglary - general: 1. common-law definition - breaking and entering into the dwelling house of another in the nighttime with the intent to commit a felony therein a. six elements: (1) breaking (not walking in freely) (2) entering (even sticking arm in) (3) dwelling house (not outhouse, barn, etc. - only dwelling house) - if the outhouse or barn was in the curtilage, it counted (4) of another (can't burglarize your own home) (5) nighttime (when was night? dawn, dusk, can you see the person's face?) (6) intent to commit felony (define felony) 2. current law - breaking is gone, entering is easy, dwelling house expanded, "of another" is paraphrased (i.e. "unauthorized" implies), nighttime is gone, felony (or theft) B. Aggravated burglary: La. R.S. 14:60. Aggravated burglary Aggravated burglary is the unauthorized entering of any inhabited building, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender, (1) Is armed with a dangerous weapon; or (2) After entering arms himself with a dangerous weapon; or (3) Commits a battery upon any person while in such place, or in entering or leaving such place. Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years. 1. State v. Lockhart, 438 So. 2d 1089 (La. 1983)
D entered victim's house when she said "okay." She then let him use the bathroom. D then attacked victim and tried to rape her. He failed and ran. He was convicted of aggravated burglary and appealed. On Appeal: S. Ct. held that there was consent, because the victim allowed D to enter, recognized him (i.e. it was not fraudulent entry), and let him go to the bathroom. Therefore the consent was valid, so there is missing the first element of the crime of aggravated burglary (unauthorized entry). Reversed. a. consent validly given negates aggravated burglary 2. State v. Tuggle, 504 So. 2d 1016 (La. App. 1st Cir. 1987) Minor child opened door and D walked in and attacked and raped and attempted to rape those therein. D was convicted, inter alia, of aggravated burglary and appealed on the grounds that the elements of aggravated burglary were not met. On Appeal: Court that: (1) evidence established "extortion" element of aggravated kidnapping; (2) evidence established "unauthorized entry" element of aggravated burglary; and (3) defendant failed to prove his insanity by preponderance of evidence. 3. State v. Glynn, 47 So. 2d 670 (La. 1950) D was charged with aggravated burglary and appealed that no one was present at the time of the entry. On Appeal: Court held that simple wording of the statute indicated that the dwelling need be inhabited. Reversed and set aside. 4. La. Crim. Code art. 814 Responsive verdicts; in particular A(43) Aggravated Burglary: a. Guilty. b. Guilty of attempted aggravated burglary. c. Guilty of simple burglary. d. Guilty of attempted simple burglary. e. Guilty of simple burglary of an inhabited dwelling. f. Guilty of attempted simple burglary of an inhabited dwelling. g. Guilty of unauthorized entry of an inhabited dwelling. h. Guilty of attempted unauthorized entry of an inhabited dwelling. i. Not guilty. B. Simple burglary: La. R.S. 14:62. Simple burglary Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, other than as set forth in Section 60. Whoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both. a. crime against habitation 1. State v. Pierre, 320 So. 2d 185 (La. 1975) D got in hood of car and stole battery. He was charged with simple burglary and filed an exception because he didn't "enter" the car, therefore, no burglary because of no entry. On Appeal: S. Ct. held that entry under the hood was sufficient for the "entry" element of burglary - it did not have to be the part of the car that people usually inhabited. 2. State v. Baggett, 292 So. 2d 201 (La. 1974) Ds convicted of simple burglary and appealed on the exception that it was a carport and therefore they did not "enter" a "dwelling."
On Appeal: Court held that the carport (which was fenced), included within the frame and roof of the home and fenced to prevent entry is a "structure" for the purposes of the burglary statutes. a. in this case, the carport was fenced and had two walls b. Court also held that since the carport was fenced (against public entry), there was no implied consent to enter c. generally, fenced yards are no sufficient for a "dwelling" for purposes of burglary 3. State v. Haarala, 398 So. 2d 1093 (La. 1981) D was convicted of simple burglary of hardware store and appealed, inter alia, on the basis that the "pipe yard" he was alleged to have burgled was not a "structure" for the purposes of the burglary statute (La. R.S. 14:62). On Appeal: Court held that evidence was clearly sufficient to support jury's findings that D entered pipe yard of hardware store; and hardware store's pipe yard was properly considered a "building-type structure" for purposes of burglary statute. D. Simple burglary of an inhabited dwelling: La. R.S. 14:62.2. Simple burglary of an inhabited dwelling Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein, other than as set forth in Article 60. Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years. a. what exactly is a dwelling or abode?? b. you can always use prosecutorial discretion to charge in the case of, e.g., a box that someone is using as a "home" or "abode," and the trick would be to get the judge to put that in the jury instructions that a box was a house E. Unauthorized entry of an inhabited dwelling: La. R.S. 14:62.3. Unauthorized entry of an inhabited dwelling A. Unauthorized entry of an inhabited dwelling is the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person. B. Whoever commits the crime of unauthorized entry of an inhabited dwelling shall be fined not more than one thousand dollars or imprisoned with or without hard labor for not more than six years, or both. La. R.S. 14:62.4. Unauthorized entry of a place of business A. 1. State v. Falls, 508 So. 2d 1021 (La. App. 5th Cir. 1987) D was convicted of simple burglary of an inhabited dwelling and appealed his conviction on the basis that he didn't enter the apartment. On Appeal: Court held that unauthorized entry of a foot through the door was sufficient to satisfy the entry requirement of the statute La. R.S. 14:62.3. N.B.: There are no Black Letter Rules in criminal law - you have to look at the statute and compare the facts of the case.
IX. Theft & Robbery A. General: 1. common-law scheme (some of which came into being after the American Revolution, so they are not strictly English common-law crimes): a. larceny - designed to prevent breaches of the peace (1) original common-law crime (a) trespassory (b) taking (caption) (c) carrying away (asportation, even including running away) (d) personal property (e.g. taking corn off the stalk was not larceny, since it was not personal property, but picked fruit was considered personal property) - if you took fruit off the tree, it was not larceny, but then if you dropped it on the ground and another guy picked it up, he could be stuck with larceny) (e) of another (f) with intent to steal b. embezzlement - later crime created by statute to plug loop-holes in "larceny" definition, esp. by people who legally came to possess your property (1) elements: (a) fraudulent (b) conversion (c) of property (d) of another (e) by one who is already in lawfu possession of it (2) classes of people who can be guilty: (a) store clerks (b) bank agents (c) LOOK UP ON HIS WEBSITE FOR LIST... c. false pretenses - if a person pretended to be someone else to allow someone to pass title to him (erroneously, obviously) (1) elements: (a) false representatntio of a material present or past fact (b) which causes the victim (c) to pass title to (d) his property to the wrongdoer (d) who (a) knows the representation to be false and (b) intends to defraud the victim d. larceny by trick - same as false pretenses except title did not pass La. R.S. 14:7. Crime defined A crime is that conduct which is defind as criminal in this Code, or in other acts of the legislature, or in the constitution of this state. a. you cannot have a crime by analogy - it must be specifically defined b. in La. criminal law is purely statutory - no other crimes except those listed in law c. "crime" specifically excludes offenders of municipal ordinances 2. La. combines all the stealing crimes into one a. permanently taking or misappropriating the property of another (1) irrespective of the relationship between the parties or means employed b. temporary taking = "unauthorized use of movables" 3. robbery = aggravated form of theft
a. three grades of robbery: (1) armed robbery (2) first degree robbery (3) simple robbery b. related statutes: carjacking, pursesnatching, extortion B. Theft: 1. State v. McIntyre, 269 So. 2d 448 (La. 1972) D non-student borrowed an LSU ID card and tried to get in an LSU game and was denied entry, but arrested and charged with theft of $7 (cost of a ticket). State applied for mandamus after trial judge sustained motion to quash bill of information. On Appeal: S. Ct. held that fact that state university student, owner of ID card, violated terms of his contract with university by lending card to nonstudent, who sought but was denied admission to football game upon presenting the card, addressed itself to internal discipline of state university and the nonstudent did not commit theft or any other offense against state. Writ of certiorari recalled, motion to quash based on bill of particulars sustained, ruling of trial court affirmed and accused discharged a. "timing is everything" b. judicial notice - court can accept as fact things that do not need evidence admitted (e.g. the state capital is in Baton Rouge - does not need to be admitted formally as evidence) c. case stands for definition of "anything of value" - D did not take anything of value from LSU (student violated LSU rule, but no one stole anything), even with the broadest possible interpretation La. R.S. 14:67. Theft A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential. B. (1) Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both. (2) When the misappropriation or taking amounts to a value of three hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both. (3) When the misappropriation or taking amounts to less than a value of three hundred dollars, the offender shall be imprisoned for not more than six months, or may be fined not more than five hundred dollars, or both. If the offender in such cases has been convicted of theft two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both. C. When there has been a misappropriation or taking by a number of distinct acts of the offender, the aggregate of the amount of the misappropriations or taking shall determine the grade of the offense. D. Repealed by Acts 2001, No. 944, 4. a. definition of "theft" is similar to definition of "larceny" at the common-law
b. theft statute accumulated dozens of Acts and Statutes of 1870, 1926 and other revisions of code and acts to come under one statute 2. State v. Coleman, 590 So. 2d 844 (La. App. 4th Cir. 1991) D was convicted of theft of property valued at more than $100 but less than $500, and he appealed. He had instructed employees at Chik-fil-a to divert cash receivables and was caught on camera - as evidence, State used percentages of normal revenue to infer the amount diverted over time. On Appeal: App. Ct. held that: (1) it is unconstitutional to require indigent D to serve additional jail time for failure to pay costs, and (2) evidence in theft prosecution was sufficient to establish that amount stolen by D was more than $100. Affirmed and amended. a. this is larceny, since the money was in possession of owner (in owner's cash register) b. if he would have directly taken the money from the customers and put it in his pocket, it would have been embezzlement 3. State v. Gisclair, 382 So. 2d 914 (La. 1980) D parish assessor was convicted of unauthorized use of movables after he had parish employees work on his personal camp (on parish time). On Appeal: S. Ct. held that: (1) D could not be convicted of theft of services of employees under the theft statute, and (2) services of employees were not "movables" within meaning of unauthorized use of movables statute. Conviction and sentence reversed, and indictment dismissed. a. cannot get conviction if the "crime" is not in the statute b. services of workers are incorporeal movables and does not fit into La. R.S. 14:68 c. since this case, other statutes have been passed to address this circumstance La. R.S. 14:68. Unauthorized use of a movable A. Unauthorized use of a movable is the intentional taking or use of a movable which belongs to another, either without the other's consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the movable permanently. The fact that the movable so taken or used may be classified as an immovable, according to the law pertaining to civil matters, is immaterial. B. Whoever commits the crime of unauthorized use of a movable having a value of one thousand dollars or less shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both. Whoever commits the crime of unauthorized use of a movable having a value in excess of one thousand dollars shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than five years, or both. a. therefore, the value of the movable dictates felony or misdemeanor - cut-off is $1k (greater than $1k = felony) b. this is originally the "joy riding statute" - now it's been expanded 4. La. C. Cr. P. art. 814. Responsive verdicts; in particular 22. Armed Robbery: Guilty. Guilty of attempted armed robbery. Guilty of first degree robbery. Guilty of attempted first degree robbery. Guilty of simple robbery.
Guilty of attempted simple robbery. Not guilty. 23. Attempted Armed Robbery: Guilty. Guilty of attempted first degree robbery. Guilty of attempted simple robbery. Not guilty. 23.1. First Degree Robbery: Guilty. Guilty of attempted first degree robbery. Guilty of simple robbery. Guilty of attempted simple robbery. Not guilty. 24. Simple Robbery: ---------------> Theft is not responsive to simple robbery Guilty. Guilty of attempted simple robbery. Not guilty. 25. Attempted Simple Robbery: Guilty. Not guilty. 26. Theft: Guilty of theft of property having a value of five hundred dollars or more. Guilty of theft of property having a value of one hundred dollars or more, but less than five hundred dollars. Guilty of theft of property having a value of less than one hundred dollars. Guilty of attempted theft of property having a value of one hundred dollars or more. Guilty of attempted theft of property having a value of less than one hundred dollars. Guilty of unauthorized use of movables having a value in excess of one thousand dollars, but only if a value in excess of one thousand dollars is stated in the indictment. Guilty of unauthorized use of movables having a value of one thousand dollars or less. Not guilty. 27. Attempted Theft: Guilty of attempted theft of property having a value of one hundred dollars or more. Guilty of attempted theft of property having a value of less than one hundred dollars. Guilty of attempted unauthorized use of movables having a value of less than one hundred dollars. Guilty of attempted unauthorized use of movables having a value in excess of one thousand dollars, but only if a value in excess of one thousand dollars is stated in the indictment. Guilty of attempted unauthorized use of movables having a value of one thousand dollars or less. Not guilty. 28. Theft of Cattle, Horses, Mules, Sheep, Hogs, or Goats: Guilty. Guilty of attempted theft of cattle, horses, mules, sheep, hogs, or goats. Not guilty. 29. Attempted Theft of Cattle, Horses, Mules, Sheep, Hogs, or Goats: Guilty.
Not guilty. 5. State v. Victor, 368 So. 2d 711 (La. 1979) D tried to sneak a TV out of a store in the box of a terrarium. He was convicted of theft, and he appealed. On Appeal: S. Ct. held that: (1) sufficiency of the evidence was a matter to be decided by the trier of fact, and (2) because there was some evidence tending to establish each element of the crime charged, the conviction was affirmed. Affirmed. a. basic teaching of the case was that D only needed to be in possession of the stolen material for a second for there to be "proof" that he was attempting to take it permanently b. intent of the Criminal Code provision which combined into a single crime the traditional and technically defined criminal offenses of larceny, embezzlement and obtaining by false pretenses was to simply and clearly reflect the fundamental notion that it is socially wrong to take the property of another, in any fashion whatsoever c. using another as an agent is enough to satisfy the element of the taking of the stolen items (in this case, the daughters were used to try to get the box out) 6. State v. Ellis, 618 So. 2d 616 (La. App. 2d Cir. 1998) D appealed jury conviction for stealing women's sportswear (shoplifting) by making a sufficiency argument that she returned the merchandise. On Appeal: App. Ct. held that evidence was sufficient to support D's conviction for stealing women's sportswear, even though D reentered store shortly after leaving and threw the clothing beneath the rack where other clothing was displayed. Affirmed. a. someone who takes property of another, intending at time of taking to permanently deprive owner of that property, is nonetheless guilty of crime of theft though she later, becoming frightened or having change of heart, decides to return it and does so 7. State v. Sanders, 622 So. 2d 817 (La. App. 4th Cir. 1993) D was convicted of possession of stolen property following bench trial, and he appealed. On Appeal: App. Ct. held that evidence was sufficient to demonstrate that D knew or should have known that car was stolen. He was in possession of a stolen car that was left with him by an unknown person, with the lock broken, the trunk broken (i.e. obviously stolen). Affirmed. a. La. R.S. 14:69. Illegal possession of stolen things (1) goods must in fact be stolen - something of value from robbery or theft (2) knowledge of offender - must know or should have known that goods were stolen - objective knowledge test (3) "having" stolen property, rather than "receiving" such property - possession must persist beyond the point that he knows (or should have known) that the goods are stolen (4) this used to be called "receiving stolen things" but that's wrong now 8. State v. Vincent, 387 So. 2d 1097 (La. 1980) D was convicted of simple burglary and "possession of stolen property in the amount of $100." D was later adjudicated an habitual offender, and he appealed. On Appeal: S. Ct. held that: (1) under the circumstances, the court could not say that by the use of the term "possession" the jury intended to find D guilty of receiving stolen things, the crime charged, or guilty of a lesser included grade of that offense; (2) since the verdict was not responsive to the charge of receiving stolen things, the trial judge erred in receiving it; (3) where the charges of simple burglary and receiving stolen things were not based on exactly the same conduct, D could be prosecuted for both offenses without being twice placed in jeopardy for same offense; (4) the state met its burden to
prove that more than five years had not elapsed since the expiration of the maximum sentence for D's last prior felony and the time of the offenses for which he was on trial; and (5) the state was not required to prove that defendant was informed of and made a knowing waiver of his Boykin rights on the occasion of two prior guilty pleas. Conviction and sentence for simple burglary affirmed; conviction and sentence for receiving stolen things reversed and remanded. a. no crime in La. entitled "possession of stolen property" b. crimes of simple burglary and receiving stolen things are distinct and separate offenses and, therefore, a defendant may be tried and convicted of both offenses without any violation of his double jeopardy rights c. even though the same incident led to charges of burglary and receiving stolen things, where the burglary was completed before the alleged reception of stolen things took place, the two charges were not based on exactly the same conduct and, therefore, D could be prosecuted for both offenses without being twice placed in jeopardy for the same offense d. you must always read the language of the statute 9. State v. O'Neal, 328 So. 2d 100 (La. 1976) D was convicted in of attempted theft, and he appealed. On Appeal: S. Ct. held that question whether D who sought to cash check made to order of another person without informing him of full amount and without giving him entire proceeds was guilty of charged crime was for jury; that sentence imposed was within statutory limitations; and that D who was convicted of a misdemeanor was not entitled to a three-day delay between conviction and sentencing. Affirmed. a. to commit the crime of attempted theft, D must have specific intent to commit theft and do an act for purpose of and tending directly toward the theft b. to commit the crime of theft, D must have intent to deprive permanently c. attorney was negligent to tell his client to sign something he had not read C. Armed robbery: 1. State v. Conrad, 620 So. 2d 366 (La. App. 5th Cir. 1993) D convicted of armed robbery (gun) and sentenced to 49.5 years at hard labor without benefit of parole, probation, or suspension of sentence with credit for time served, and D appealed. On Appeal: App. Ct. held that: (1) state proved taking element of armed robbery beyond reasonable doubt, and (2) 49 1/2 year sentence was not excessive given D's prior criminal history. Amended, and as amended, affirmed. a. testimony by victim that D grabbed purse off her shoulder, and put straps over his finger, and that victim grabbed purse back from him indicated that D did have possession of victim's purse at some point during incident and sustained finding that there was a "taking" within meaning of armed robbery statute b. slightest asportation is sufficient for robbery La. R.S. 14:64. Armed robbery A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. 2. State v. Byrd, 385 So. 2d 248 (La. 1980) D was convicted of attempted armed robbery and he appealed.
On Appeal: S. Ct. held that: (1) toy pistol, in manner in which it was used, did not constitute a "dangerous weapon," and (2) since elements of crime of attempted simple robbery had been proven beyond reasonable doubt, ordering entry of judgment of guilty of such lesser and included offense was appropriate. Conviction and sentence set aside, and matter remanded with instructions. a. if toy pistol was not used in robbery in manner likely to produce bodily harm, toy pistol did not constitute a "dangerous weapon" within contemplation of statute proscribing armed robbery and defining dangerous weapon (life-endangering situation) b. J. Watson (dissent) - stated that higher courts were not empowered to enter guilty verdicts 3. State v. Ellis, 672 So. 2d 1007 (La. App. 5th Cir. 1996) D was convicted of armed robbery of Danny & Clydes of $48, and he appealed. On Appeal: App. Ct. held that evidence was sufficient to establish that D was armed with pocket knife. Affirmed a. evidence that D stood in front of counter, placed his hand in his right front pocket, threatened to let victim "have it," and that police officer subsequently found pocket knife in D's right front pocket was sufficient to establish that defendant was armed with pocket knife, so as to support his conviction for armed robbery, despite fact that defendant did not brandish knife D. First degree robbery: La. R.S. 14:64.1. First degree robbery A. First degree robbery is the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon. B. Whoever commits the crime of first degree robbery shall be imprisoned at hard labor for not less than three years and for not more than forty years, without benefit of parole, probation or suspension of imposition or execution of sentence. 1. State v. Meyers, 620 So. 2d 1160 (La. 1993) D was convicted of first-degree robbery following jury trial and he appealed. App. Ct. reversed and certiorari was granted. On Appeal: S. Ct. held that force or intimidation element of robbery is satisfied by evidence that force or intimidation directly related to taking occurred in the course of completing the crime. Reversed and conviction and sentence reinstated. a. evidence in prosecution in which D was convicted of first-degree robbery was sufficient for jury to find that store clerk could have reasonably believed that D had gun, in light of evidence that defendant displayed small black object when clerk caught him with hands in cash register, though D did not indicate possession of weapon by threatening words b. stands for the concept that the use of force or intimidation may be to effect escape, not necessarily to commit the crime - if the "force or intimidation" occurs during the res gestae, it is sufficient to satisfy the statute E. Simple robbery: La. R.S. 14:65. Simple robbery A. Simple robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.
B. Whoever commits the crime of simple robbery shall be fined not more than three thousand dollars, imprisoned with or without hard labor for not more than seven years, or both. 1. State v. Florant, 602 So. 2d 338 (La. App. 4th Cir. 1992) D was convicted of simple robbery by jury based on incident in which D took $20 bill without giving change after shining victim's shoes. D appealed. On Appeal: App. Ct. held that evidence did not establish "use of force or intimidation" needed to support simple robbery conviction. Reversed. a. this could have been theft of material less than $100, but it is not responsive to any type of robbery 2. State v. Thomas, 447 So. 2d 1053 (La. 1984) D was convicted on two counts of simple robbery, and sentenced to life imprisonment at hard labor, and D appealed. He had been driving up behind victims flashing blue lights and flashing a (fake) badge - Blue Light Bandit - and "searched" the car and took some valuables. On Appeal: S. Ct. held that: (1) evidence was sufficient to support conviction, and (2) imposition of life sentence was not abuse of discretion. Affirmed. a. offense of theft is crime against property, whereas robbery is offense against person; thus, latter has harsher penalty b. evidence in prosecution for simple robbery, including evidence that D stopped victims, displayed what appeared to be badge, took their money under guise of searching vehicle for drugs, and threatened victims with "trouble," was sufficient to prove "intimidation" and to support conviction 3. State v. Smith, 450 So. 2d 714 (La. App. 4th Cir. 1984) Ds who were brothers were convicted of armed robbery and they appealed. On Appeal: App. Ct. held that: (1) evidence was sufficient to convict one brother of armed robbery, inasmuch as he used hammer to threaten store clerks; (2) second brother could not be convicted of armed robbery on basis of motion with his hand inside his jacket while directing clerk to give him money, since hand in a pocket is not, of itself, a dangerous weapon; and (3) although second brother committed a simple robbery and aided and abetted his brother's commission of simple robbery, evidence was insufficient to support his conviction as a principal in armed robbery since he did not mention hammer used by first brother, either before first brother picked it up or while he was using it to threaten the clerks. Affirmed in part; reversed and remanded in part. a. State may prove guilt of armed robbery by showing that D acted as a principal to the crime by aiding, abetting, counseling or procuring another to commit the crime b. D could not be convicted of armed robbery solely on basis of a hand motion under his jacket, since a hand in a pocket is not, of itself, a dangerous weapon c. all principals to a crime are not necessarily guilty of the same grade of offense; a principal may be convicted of a higher or lower degree of a crime, depending upon the mental element proved at trial X. Parties to Crime and Inchoate Crimes A. General background: 1. common-law - parties to a crime: a. accessory before the fact (counselor, procurer or aider) b. principal (the doer) c. accessory after the fact (aider, harborer, concealor) d. also, maybe, accessory at the fact (e.g. a get-away driver) 2. La. law - parties to a crime:
a. principal = accessory before the fact + doer (1) no separate accessory before the fact - all are tried as principals b. accessory after the fact - renders aid, comfort or assistance to the offender (1) accessory does not have to have actual knowledge that the one aided has actually committed an offense - must know or have reason to believe that he did 3. intent crimes: a. criminal conspiracy - includes combination or agreement of purpose (1) Ds may be prosecuted for conspiracy, the completed offense, or both (2) conspiracy is a separate crime from the actual physical crime b. criminal intent - no agreement of purpose, simply attempting the crime (1) intent is generally a lesser included offense to a crime, not a separate crime (2) D may not be convicted of crime and intent to commit the crime - only one or the other 4. inciting a felony: a. similar to common-law solicitation b. only applies to felonies (e.g. aggravated battery), not to misdemeanors (e.g. simple assault), under La. law B. Principals: La. R.S. 14:23. Parties classified The parties to crimes are classified as: (1) Principals; and (2) Accessories after the fact. a. La. statute leaves only 2 parties - no accessory before the fact or at the fact La. R.S. 14:24. Principals All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. 1. State v. Pierre, 631 So. 2d 427 (La. 1994) D was charged with second degree murder and convicted (jury trial) of manslaughter. He appealed, arguing that State failed to show that he aided and abetted in the commission of the offense and that he was merely present at the murder scene (where a young teenaged boy was raped and savagely beaten to death admittedly by two other co-Ds). App. Ct. upheld the conviction and D appealed. On Appeal: S. Ct. held that to be guilty as a principal D had to knowingly participate in the planning or execution of the crime; mere presence does not necessarily count. Further, to be culpable of a specific crime (in this case, homicide), D must have the requisite mental state (intent for the victim to die). Therefore, State did not prove beyond a reasonable doubt the elements of the crime(s). Reversed and discharged. a. case stands for the concept that "concern(ed) in the commision of a crime" means knowing participation in the planning or execution, not mere presence 4545 "mere presence" is a defense often used, since it does not "concern" the commission of a crime from R.S. 14:24 c. reversed and discharged - no new trial (double jeopardy) 2. State v. LeBlanc, 637 So. 2d 489 (La. 1994) D was convicted for attempted 2nd degree murder (and armed robbery) and appealed that he was only present at the scene in a get-away car and shared the proceeds of the
robbery, but he did not have the intent to kill the victim. On Appeal: S. Ct. held that there was no evidence that allowed a rational jury to find that D had the required intent to kill the victim, since the victim was apparently killed spontaneously during the robbery, and the D was in the get-away car. Conviction for 2nd degree murder was reversed, but armed robbery was upheld. a. was a prinicipal to the robbery but not to the 2nd degree murder b. need the requisite mental state - specific intent- to be guilty as a principal - cannot transfer intent from one perpetrator to another 3. State v. McAllister, 366 So. 2d 1340 (La. 1978) D was convicted of manslaughter, and he appealed, since his accomplice was acquitted of first degree murder (and convicted of manslaughter), and D argued he couldn't be charged with more than the actual killer was convicted of (since D was initially charged with first degree murder, but was convicted of manslaughter). On Appeal: S. Ct. held that: (1) the fact that the actual perpetrator of the homicide had been convicted of manslaughter and thus implicitly acquitted of first-degree murder did not prevent D's being tried under an indictment charging first-degree murder on the theory that D was a principal who aided, abetted, counseled or procured the actual perpetrator to commit a homicide; (2) the fact that a jury had found that the actual perpetrator killed the victim in the heat of passion did not prevent the State from charging D with first-degree murder; (3) the statute which defines principals who may be charged with committing a substantive crime was neither vague nor overbroad, nor did it violate equal protection guarantees; (4) D was neither surprised nor prejudiced by the introduction of a questionably inculpatory statement that had been introduced at his prior trial; (5) the trial court properly refused to let D employ irrelevant prior testimony of a witness in an effort at impeachment; (6) D's motion for directed verdict at the close of the State's case was properly denied; (7) manslaughter was a responsive verdict to a charge of murder; (8) D did not have a right to a jury trial in a multiple offender proceeding, and (9) D was not denied the right to confrontation in the multiple offender proceeding. Conviction and sentence affirmed. a. principals can have different mental elements - one can be hot-blooded, and one can be cool and calculating, so different levels of crime can be charged (e.g. second degree murder versus manslaughter) depending on the intent, i.e. principals can be charged with higher or lower levels of crimes, whether they're the actual killer, e.g., or just an accomplice 4. State v. Holmes, 388 So. 2d 722 (La. 1980) D was convicted of first-degree murder, and he appealed. On Appeal: S. Ct. held that: (1) the prosecutor misstated the law when, in attempting to explain the law of principals, indicated to jurors that all that was necessary to establish the D's guilt of first-degree murder was proof that the D was not only involved in the armed robbery which resulted in the victim's death, but since the trial court gave the jurors a proper explanation in its instructions, the conduct of the prosecutor did not constitute reversible error, and (2) notwithstanding claim that D's actions were simply meant to intimidate the victims, where circumstantial evidence did not exclude all reasonable hypotheses of innocence in that it showed D's considerable involvement in planning an execution of robbery which resulted in death of victim, showed that D was the one who obtained the shotgun and placed it in the car, and was subject to a reasonable inference that D intended the use of deadly force, if necessary, to effectuate the robbery, evidence did not fail to establish intent to kill or inflict great bodily harm. Affirmed. 5. State v. West, 568 So. 2d 1019 (La. 1990) D was convicted of first-degree murder, and he appealed. App. Ct. affirmed and D filed writ of certiorari.
On Appeal: S. Ct. held that erroneous jury charge may have contributed to D's conviction. Vacated and remanded for a new trial (reversible error). a. instruction on law of principals stating "all persons knowing the unlawful intent of the person committing the crime * * * are principals and are equal offenders and are subject to the same punishment" could have led reasonable person of ordinary intelligence to believe that D's specific intent could be implied merely from knowledge of coconspirators' intent, and was erroneous b. mental element - important to know the mental element for each individual, because they may be different and the D.A. has to prove each (beyond a reasonable doubt) 6. State v. Knowles, 392 So. 2d 651 (La. 1980) D was indicted for first-degree murder and conspiracy to commit first-degree murder, and, after jury trial, was acquitted of murder charge. Upon state's attempt to prosecute D for alleged conspiracy, D filed two motions to quash indictment. District Court entered judgment denying motions, and D petitioned for writ of certiorari. On Appeal: S. Ct. held that: (1) rational jury could not have concluded, for purpose of applying collateral estoppel doctrine to conspiracy charge under verdict acquitting D of first-degree murder, that D was proved beyond reasonable doubt to have fired gun and thus jury did not need to reach question of whether D's intoxication negated requisite intent to commit murder offense; (2) rational jury must have concluded, for collateral estoppel purposes, that, although plan was formed for murder of victim, and an act done in execution of plan, D was simply not involved in it, i. e., she did not aid, abet or counsel her sister in commission of alleged offense; and (3) under such circumstances, jury's verdict, exonerating D of any criminal involvement in homicide, had to be taken to preclude litigation of issue of whether she conspired to commit killing. Judgment reversed and set aside; motion granted; D discharged. C. Accessory after the fact: 1. State v. Chism, 436 So. 2d 464 (La. 1983) D was convicted of being an accessory after the fact, and was sentenced to three years in parish prison, with three and one-half years suspended, and D appealed. On Appeal: S. Ct. held that: (1) one may be convicted of being an accessory after the fact based on general criminal intent; (2) evidence supported conviction; and (3) sentence imposed was illegal. Conviction affirmed; sentence vacated; remanded. a. one may be punished as an accessory after the fact if he: (1) aids an offender personally (2) knowing or having reasonable grounds to believe that he has committed the felony (3) specific or general intent that the offender will avoid or escape from arrest, trial, conviction or punishment b. circumstantial evidence is sufficient La. R.S. 14:25. Accessories after the fact An accessory after the fact is any person who, after the commission of a felony, shall harbor, conceal, or aid the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment. An accessory after the fact may be tried and punished, notwithstanding the fact that the principal felon may not have been arrested, tried, convicted, or amenable to justice. Whoever becomes an accessory after the fact shall be fined not more than five hundred dollars, or imprisoned, with or without hard labor, for not more than five years, or both; provided that in no case shall his punishment be greater than one-half of the maximum provided by law for a principal
offender. a. general intent crime b. mandatory sentencing ("shall"), but not more than 1/2 of principal offender c. even if the principal offender has not been arrested or tried, at the trial of the accessory the D.A. must prove the elements of the principal crime d. if principal offender is acquitted, there is no accessory La. R.S. 14:131. Compounding a felony Compounding a felony is the accepting of anything of apparent or prospective value which belongs to another, or of any promise thereof, by a person having knowledge of the commission of a felony, upon an agreement, express or implied, to conceal such offense, or not to prosecute the same, or not reveal or give evidence thereof. Whoever commits the offense of compounding a felony shall be fined not more than one thousand dollars or imprisoned, with or without hard labor, for not more than two years, or both. 2. State v. Jackson, 344 So. 2d 961 (La. 1977) D was convicted of being an accessory after the fact to a simple burglary and appealed. On Appeal: S. Ct. held that fact that D compounded a felony by taking something of value for an agreement not to reveal felony and also received stolen property was not such as to make D an accessory after the fact where no aid was given to the fugitive felons personally to prevent their arrest. Reversed and remanded. a. failure to report a crime to authorities does not render someone accessory after the fact (he didn't harbor, aid or conceal) - this is called Misprison of Felony, a federal crime but not a substantive crime under La. law b. that D compounded a felony by taking something of value for an agreement not to reveal felony and also received stolen property was insufficient to make D an accessory after the fact where no aid was given to the fugitive felons personally to prevent their arrest - he could have been charged with illegal possession of stolen things, La. R.S. 14:69, if the facts of the case fit the statute (money must have come from the robbery or theft, and he had to know or good reason to know that it did), or he could have been charged with compounding a felony, La. R.S. 14:131 D. Conspiracy: 1. State v. Blunt, 530 So. 2d 678 (La. App. 4th Cir. 1988) D was convicted of conspiracy to commit theft of property valued at over $500 and was sentenced to two and one-half years at hard labor, and she appealed. On Appeal: App. Ct. held that: (1) jury could find that D was party to agreement for stealing cars, but (2) there was insufficient evidence that stolen cars had aggregate value of at least $500, and conviction would be reduced to one for lesser offense of conspiracy to commit theft of goods valued at at least $100 but under $500. Reversed in part and remanded. a. conspiracy can be demonstrated by circumstantial evidence La. R.S. 14:26. Criminal conspiracy A. Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination. If the intended basic crime has been consummated, the conspirators may be tried for either the conspiracy or the
a. b. c. d. e.
f. g.
completed offense, and a conviction for one shall not bar prosecution for the other. B. Whoever is a party to a criminal conspiracy to commit any crime shall be fined or imprisoned, or both, in the same manner as for the offense contemplated by the conspirators; provided, however, whoever is a party to a criminal conspiracy to commit a crime punishable by death or life imprisonment shall be imprisoned at hard labor for not more than thirty years. C. Whoever is a party to a criminal conspiracy to commit any other crime shall be fined or imprisoned, or both, in the same manner as for the offense contemplated by the conspirators; but such fine or imprisonment shall not exceed one-half of the largest fine, or one-half the longest term of imprisonment prescribed for such offense, or both. must commit an overt act in furtherance of the conspiracy - "any crime" means any Louisiana crime, not federal crimes or crimes of other jurisdictions can be charged with both conspiracy to commit X, and the crime X itself, since the conspiracy is not merged with the subsequent crime conspiracy is a specific intent crime two or more persons combination = two or more persons must have malefic intent (you can't "conspire" if one person has no intent to do it - e.g. one person is an agent for the cops, so he didn't really intend the crime, he was acting) if the intended basic crime has been consumated, the D can be charged with the crime itself, or conspiracy to commit the crime, or both (statute and courts say that the conspiracy is a substantive crime in and of itself and does not fall under double jeopardy with the specific crime) conspiracy is a crime for policy reasons: group activity is more difficult to abort than individual conduct express withdrawal/abandonment, notification of the co-conspirators, or refusal to act, or confession to the authorities can terminate participation in a conspiracy - D must make affirmative action inconsistent with objective of the conspiracy
2. State v. Joles, 485 So. 2d 212 (La. App. 2d Cir. 1986) D was charged with conspiracy to commit first degree murder. District Court quashed the charge and the State appealed. On Appeal: App. Ct. held that there was no criminal conspiracy between two people when one of those persons, as state agent, had no intention to commit crime involved. Affirmed. a. can't conspire with the police or the D.A. - you must have a real co-conspirator and some overt act must ensue with specific purpose towards the intended crime b. perhaps the facts might work for solicitation for murder, La. R.S. 14:28.1 3. State v. Interest of W.T.B., 771 So. 2d 807 (La. App. 2d Cir. 2000) Juvenile was adjudicated delinquent based upon his conspiracy to commit simple arson. Juvenile appealed. On Appeal: App. Ct. held that: (1) evidence was sufficient to sustain adjudication as delinquent based upon conspiracy to commit simple arson; (2) decision to accept expert's conclusion that fire was started as result of accelerant being placed on floor was not clearly wrong. Affirmed. a. motive evidence reveals the state of mind or emotion that influenced the D to desire the result of the charged crime b. specific intent is essential element of conspiracy - but, motive is never an element
of any crime in La. (only helps jury understand convict) c. determination of specific criminal intent is a question of fact that may be inferred from circumstances and actions of the D d. proof of conspiracy can be made with direct or circumstantial evidence e. an "overt act," as an element of conspiracy, need not be an unlawful act; it may be any act, however innocent in itself, accompanying or following the agreement which is done in furtherance of its object E. Attempt: La. R.S. 14:27. Attempt A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended. C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt. D. Whoever attempts to commit any crime shall be punished as follows: (1) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence; (2) If the offense so attempted is theft or receiving stolen things, and is not punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned for not more than six months, or both. If the offense so attempted is receiving stolen things, and is punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned not more than one year, or both. If the offense so attempted is theft, and is punishable as a felony, he shall be fined not more than five hundred dollars, or imprisoned not more than one year, or both; (3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both. a. specific intent crime b. overt act? - what constitutes an "overt act" (1) failure is not an essential element of attempt (2) attempt does not merge in the completed offense (3) if attempt has been completed, D may be charged with attempt or completed offense or both (attempt can be a resposive verdict) (4) impossibility is not a defense (5) totality of the facts and circumstances must be evaluated c. the "searching" clause came from a New York case (1930s?) where malefactors were searching for their victim and were acquitted, drawing a nation-wide outrage and the passage of various statutes criminalizing "searching with a dangerous weapon"
d. Ca. case - test for "attempt": preparation consists of devising or arranging the means or measures necessary for the commission of a crime; the attempt is the direct movement toward the commission after preparations are made (People v. Murray) e. Comments to La. R.S. 14:27: act must be approximately connected with - fairly close to - the final consequence intended but no fulfilled - the first step is not necessarily sufficient and the final step not necessarily enough f. act that would naturally effect the intention unless prevented by some extraneous cause g. attempt = so near to the result that there is dangerous proximity to success h. State v. West, 437 So. 2d 1212 (Ms. 19??) - judge felt that walking up to the bank teller's window with a loaded gun and suddenly changing your mind does not count as attempted bank robbery - unpopular opinion 1. State v. Smith, 661 So. 2d 442 (La. 1995) D was convicted of attempted aggravated crime against nature, and he appealed. App. Ct. reversed on basis that the act was mere preparation (and abondonment), not overt act. On Appeal: S. Ct. held that D's acts of entering son's bedroom, lying on the bed, and requesting his son to sit on his chest tended directly toward the commission of an aggravated crime against nature and were more than mere preparation. Reversed, and conviction and sentence affirmed. a. in determining whether action of D is an attempt, totality of the facts and circumstances presented by each case must be evaluated b. overt act need not be ultimate step toward or the last possible act in the consummation of the crime attempted - dangerously close to success c. it is the intent to commit the crime, not the possibility of success, that determines whether act or omission constitutes crime of attempt 2. State v. Williams, 490 So. 2d 255 (La. 1986) Dobey Gillis Williams case D was convicted after jury trial of first-degree murder. Jury unanimously recommended death penalty, and D appealed. On Appeal: S. Ct. held that: (1) evidence was sufficient to support finding D was guilty of attempted aggravated rape; (2) evidence that D committed murder while on furlough was admissible; and (3) death sentence was not disproportionate to crime and D. Conviction and sentence affirmed. a. D's breaking and entering victim's home and hiding behind bathroom door with his pants off constituted "attempt" not mere preparation to commit crime, within meaning of criminal law - overt act inferred from the totality of the circumstances b. one theory at trial for the D was that the black man and the wife were having an affair but the husband killed the wife because of it. . . so DNA test was irrelevant c. D was executed in 1999 after 11 reprieves, etc. 3. State v. Fredenberg, 441 So. 2d 443 (La. App. 2d Cir. 1983) D was convicted of attempted armed robbery, after he robbed a dry-cleaners but didn't take the money, and he appealed. On Appeal: App. Ct. held that: (1) evidence that D threatened store clerk with knife and demanded money from cash register was sufficient to sustain conviction, notwithstanding fact that D subsequently refused tender of the money, and regardless of motive of D, who was slightly retarded, in engaging in the unlawful conduct, and (2) ten-year sentence was not excessive. Affirmed. a. specific intent being purely subjective state of mind, its existence may be inferred from circumstances of transaction and actions of D b. criminal attempt is complete offense in sense that one who has carried criminal effort to such point that it is punishable can no more wipe out his criminal guilt by
abandonment of his plan than thief can obliterate larceny by restoration of stolen chattel - you can change your mind and still be guilty of attempt 4. State v. Stone, 615 So. 2d 38 (La. App. 3d 1993) D was convicted of attempted armed robbery of a gas station store. D appealed. On Appeal: App. Ct. held that there was insufficient evidence that D intended to take anything from store to support her conviction. Reversed; conviction set aside. a. to prove attempted armed robbery, state had to prove that D had specific intent to commit crime of armed robbery, and did act for purpose of and tending directly toward commission of crime of armed robbery b. intent is state of mind which need not be proven as fact, but may be inferred from facts and circumstances of transaction and actions of D c. specific intent is ultimate legal conclusion to be resolved by trier of fact d. to convict of attempted armed robbery, there must be sufficient evidence to establish intent to take something of value, even though act of taking need not be established F. Solicitation: 1. State v. Kotwitz, 549 So. 2d 351 (La. App. 2d Cir. 1989) D was convicted of inciting a felony and attempted corrupt influencing, and he appealed. On Appeal: App. Ct. held that: (1) facts indicated that D was predisposed to commit crimes and therefore defense of entrapment was inapplicable; (2) D could not avail himself of defense of governmental misconduct; (3) evidence supported conviction of inciting felony; (4) evidence did not support conviction of corrupt influencing; and (5) sentence was not excessive. Affirmed in part and reversed in part. a. in prosecution for corrupt influencing of public official, it does not matter that official whom D seeks to corruptly influence is already corrupt b. solicitation is only preparatory and is not an overt act which would support a conviction for attempt of the crime solicited La. R.S. 14:28. Inciting a felony A. Inciting a felony is the endeavor by one or more persons to incite or procure another person to commit a felony. B. Whoever commits the crime of inciting a felony shall be fined not more than one thousand dollars, or imprisoned, with or without hard labor, for not more than two years, or both. C. If an offender over the age of seventeen years commits the crime of inciting a felony by endeavoring to incite or procure a person under the age of seventeen years to commit a felony, the offender shall be fined not more than one thousand dollars and imprisoned at hard labor for not more than five years. a. general intent crime - specific intent not indicated b. crime against nature is a felony, so inciting e.g. oral sex would count here c. prostitution is a misdemeanor, so inciting prostitution would not fit here d. only cases falling under inciting are when the person solicited refuses to commit the crime (1) if the crime was completed, the solictor(s) becomes a principal in the crime (2) if the crime is attempted or completed, the solictor(s) becomes a co-conspirator (3) if X incites Y, but then X backs out, and then Y eggs X on again and X agrees, they both can be guilty of inciting 2. State v. Bennett, 617 So. 2d 550 (La. App. 3d 1993) D was convicted of solicitation to commit murder, and he appealed. App. Ct. reversed. D was again convicted, and he appealed. App. Ct. reversed. State appealed. S. Ct.
reversed and remanded. On Remand: App. Ct. held that: (1) statutory prohibition against solicitation to commit first or second-degree murder was not unconstitutionally vague; (2) co-conspirator's impression that D was thinking of murder was relevant and admissible; and (3) gaps in audiotape of D's conversation with trooper posing as hit man went to weight, not admissibility. Affirmed. a. in charging solicitation of first or second-degree murder, state need not choose which type of murder D incited (there's no crime of "murder" - it's inclusive of both) - it puts D on notice of what crime he's charged with (he can look to the statute to see the scope of the charge) - jury charge: need not differentiate between 1st and 2nd degree murder La. R.S. 14:28.1. Solicitation for murder A. Solicitation for murder is the intentional solicitation by one person of another to commit or cause to be committed a first or second degree murder. B. Whoever commits the crime of solicitation for murder shall be imprisoned at hard labor for not less than five years nor more than twenty years. XI. Justification and Excuse A. General: B. Intoxication: 1. State v. Savoy, 551 So. 2d 835 (La. App. 3d Cir. 1989) D was convicted by jury of two counts of obtaining controlled dangerous substances by fraudulent means, and he appealed. On Appeal: App. Ct. held that: (1) D was not entitled to instruction on involuntary intoxication, and (2) D could not discuss facts and law of specific reported decision during closing arguments.Affirmed. a. D charged with obtaining controlled dangerous substances by fraudulent means was not entitled to instruction on involuntary intoxication, based on claim that he should be exempt from criminal responsibility because his addiction to drugs was so compulsive that taking them and becoming intoxicated by them was involuntary La. R.S. 14:15. Intoxication The fact of an intoxicated or drugged condition of the offender at the time of the commission of the crime is immaterial, except as follows: (1) Where the production of the intoxicated or drugged condition has been involuntary, and the circumstances indicate this condition is the direct cause of the commission of the crime, the offender is exempt from criminal responsibility. (2) Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime. 2. State v. Tezeno, 507 So. 2d 291 (La. App. 3d Cir. 1987) D was convicted in of second-degree murder, and he appealed. On Appeal: App. Ct. held that: (1) evidence was sufficient to support finding D had specific intent to commit crime, and (2) autopsy and crime scene photographs of victim were admissible. Affirmed a. burden of proof is on D to prove his intoxication - in this case, witnesses testified,
etc. and the jury felt D had the requisite intent and intoxication was not an issue C. Justification - General Provisions: 1. State v. Glass, 455 So. 2d 659 (La. 1984) D was convicted of two counts of first-degree murder, and he was sentenced to death. On Appeal: S. Ct. held that: (1) sanity commission appointed by the trial court fulfilled its duties of assessing D's mental state at time of the offense; (2) defense of coercion was not available; (3) trial court did not err in refusing to permit D to exhibit coD, without compelling him to testify, so that jury could assess reasonableness of D's coercion defense; and (4) sentence of death was not excessive. Affirmed. La. R.S. 14:18. Justification; general provisions The fact that an offender's conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances: (1) When the offender's conduct is an apparently authorized and reasonable fulfillment of any duties of public office; or (2) When the offender's conduct is a reasonable accomplishment of an arrest which is lawful under the Code of Criminal Procedure; or (3) When for any reason the offender's conduct is authorized by law; or (4) When the offender's conduct is reasonable discipline of minors by their parents, tutors or teachers; or (5) When the crime consists of a failure to perform an affirmative duty and the failure to perform is caused by physical impossibility; or (6) When any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed; or (7) When the offender's conduct is in defense of persons or of property under any of the circumstances described in Articles 19 through 22. La. R.S. 14:14. Insanity If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility. 2. State v. Ducote, 452 So. 2d 1305 (La. App. 3d Cir. 1984) D was convicted of simple battery, and he appealed. On Appeal: App. Ct. held that: (1) fact that victim might have used vulgar language did not justify D's striking him with pop bottle, and (2) evidence was sufficient to allow a rational trier of fact to find that D provoked victim's attack and/or that D used excessive force in striking victim with bottle. Affirmed. a. where self-defense is claimed by defendant, state has burden of proving beyond a reasonable doubt that he was not acting in self-defense b. self-defense is justified if a person using force reasonably believes that he is in imminent danger of receiving great bodily harm and that force employed is necessary to protect himself c. factors to be considered in determining whether party attacked had reasonable belief that it was necessary to resort to serious physical attack are: excitement and confusion of occasion; possibility of using force or violence less than used; and party's knowledge of his assailant's bad character
d. D is required to prove justification defense by a preponderance of the evidence e. vulgar language by victim did not justify D's battery of victim with pop bottle La. R.S. 14:19. Use of force or violence in defense The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person's lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide. La. R.S. 14:21. Aggressor cannot claim self defense A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:22. Defense of others It is justifiable to use force or violence or to kill in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means himself, and when it is reasonably believed that such intervention is necessary to protect the other person. 3. State v. Everett, 530 So. 2d 615 (La. App. 3d Cir. 1988) D was convicted of aggravated battery, and he appealed. On Appeal: App. Ct. held that: (1) finding that D made free and voluntary waiver of rights prior to making inculpatory statement was supported by evidence; (2) use of leading questions by prosecutor was not error; (3) evidence established chain of custody of handcuffs; (4) special instruction offered by D on authority of bounty hunters was improper; (5) prosecutor's comments did not exceed scope of closing argument; (6) D's conviction for aggravated battery was supported by evidence; (7) finding that D employed unreasonable force in apprehending fugitive was supported by evidence; (8) sentence of six years was not unconstitutionally excessive; (9) trial judge's reasons in support of sentence represented substantial compliance with statutory factors; and (10) D was not denied effective assistance of counsel. Affirmed. 4. State v. Bryan, 398 So. 2d. 1019 (La. 1980) D was convicted of first-degree murder, and he appealed. On Appeal: S. Ct. held that determination whether newly discovered evidence, relative to victim's past misconduct, warranted new trial could not be made without close inspection of the evidence offered and thus case had to be remanded for hearing on such allegations. Case remanded. a. although officer may use reasonable force to effect lawful arrest, officer may not employ unnecessary and unreasonable brutality in arrest and, if officer uses unreasonable force against person who has submitted peaceably to an arrest, person being arrested may defend himself and may even kill, if necessary to prevent death or great bodily harm b. even if evidence of victim's allegedly unprovoked and unprivileged assaultive behavior was not sufficient to establish justification, it was relevant for purpose of presenting to jury theory that defendant was guilty only of manslaughter, by showing that killing was committed in heat of passion provoked by misconduct of victim, a deputy sheriff
5. State v. Joseph, 573 So. 2d 1248 (La. App. 4th Cir. 1991) D was convicted of murder. D appealed. On Appeal: App. Ct. held that: (1) other crimes evidence was not improperly admitted; (2) prosecution properly referred to exculpatory statement made by D at time of introducing inculpatory statements; and (3) trial court properly admitted statement of coperpetrator inculpating D, in order to impeach earlier statement exculpating him. Affirmed. 6. State v. Barnes, 489 So. 2d 402 (La. App. 5th Cir. 1986) D was convicted by jury of issuing worthless checks in excess of $500, and was sentenced to serve six months imprisonment, and D appealed. On Appeal: App. Ct. held that: (1) trial court properly refused to allow D to show or describe to jury gunshot wounds allegedly previously inflicted by D's husband, offered in support of defense of compulsion; (2) D failed to sustain burden of proving defense of compulsion; and (3) failure to comply with sentencing statute requiring statement of considerations taken into account and factual basis for imposing sentence did not require remand. Affirmed. a. proof which establishes only possibility, speculation, or unsupported probability is insufficient to establish defense of compulsion D. Self-defense: 1. State v. Fluker, 618 So. 2d 459 (La. App. 4th Cir. 1993) D was convicted of attempted second-degree murder. On Appeal: App. Ct. held that: (1) state was required to prove beyond reasonable doubt that D did not act in self-defense, even in nonhomicide case; (2) state proved beyond reasonable doubt that D did not act in self-defense, even though there was history of conflict between D and victim; and (3) there was sufficient evidence from which rational trier of fact could reasonably conclude D had specific intent to kill victim. Affirmed. a. except where expressly stated by legislature, state should bear burden of proving every aspect of criminal D's guilt; where issue of exculpatory circumstances exists, it should be state's burden to disprove such claim of innocence La. R.S. 14:20. Justifiable homicide A homicide is justifiable: (1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger. (2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing. (3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle. The homicide shall be justifiable even though the person does not retreat from the encounter. (4) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40), against a person who is
attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle. The homicide shall be justifiable even though the person committing the homicide does not retreat from the encounter. 2. State v. Brown, 640 So. 2d 488 (La. App. 3d Cir. 1994) D was charged with second-degree murder for shooting death of victim, and D plead self-defense. District Court granted postverdict motion for judgment of acquittal, reversing jury's finding D guilty of manslaughter. State appealed. On Appeal: App. Ct. held that: (1) evidence supported finding that D was not aggressor in conflict and was not precluded from asserting self-defense, and (2) evidence supported verdict of acquittal based on self defense, in light of evidence that D was surrounded, attempted to retreat, and did not draw gun and shoot until he was being beaten with sticks by members of victim's group. Affirmed a. evidence supported finding that D was not aggressor in conflict and was not precluded from asserting self-defense to murder charge, even though evidence was conflicting on who threw first punch; there was no evidence that D threw first punch, nor that D had gone looking for victim or other members of victim's group 3. State v. Dozier, 553 So. 2d 911 (La. App. 4th Cir. 1989) One D was convicted of second-degree murder, and second D was convicted of manslaughter. Ds appealed. On Appeal: App. Ct. held that: (1) Ds did not act in self-defense; (2) mitigating factors permitting conviction for manslaughter rather than second-degree murder were not established by preponderance of evidence; and (3) one D was not a principal to the murder committed by the other D. Affirmed in part; reversed in part. a. evidence was sufficient for jury to find that D awaited confrontation and was prepared to kill victim and that there was sufficient time for D's blood to cool after victim struck D; thus, mitigating factors for manslaughter conviction were not established by preponderance of evidence and verdict of second-degree murder was appropriate 4. State v. Jones, 598 So. 2d 511 (La. App. 1st Cir. 1993) D was convicted of manslaughter. D appealed. On Appeal: App. Ct. held that: (1) state was not required to prove that victim would have died even if he had received proper medical treatment, and (2) evidence supported jury's rejection of justifiable homicide defense. Affirmed. a. evidence supported finding that D's striking victim was "legal cause" of victim's death; state was not required to disprove that if victim had received prompt medical treatment, he would have survived E. Defense of others: 1. State v. Gonday, 442 So. 2d 703 (La. App. 1st Cir. 1983) D was convicted of manslaughter, and he appealed. On Appeal: App. Ct. held that D, who chased victim and stopped him after automobile accident, was not aggressor and, thus, was not precluded from claiming that homicide was committed in defense of third person, since victim's reaction of pulling gun and attempting to fire it at third person, who was unarmed, was not reasonable response to attempt by third person, at D's direction, to take keys from victim's car so that victim would remain at scene until accident could be reported to the police. Reversed and rendered.
a. not every act of a D will make him an aggressor; it is the character of the act coupled with intent of D that determines whether D is the aggressor b. act of aggression which would thereafter preclude asserting the right of self-defense must be such that the response elicited from victim by the aggressive act can be termed a reasonable response to such act F. Defense of property: 1. State v. Baudoin, 533 So. 2d 1071 (La. App. 3d Cir. 1988) During criminal action, District Court denied D ability to demonstrate lawful possession of land and right to use justifiable force. On Appeal: App. Ct. held that relator D had right to present evidence of his lawful possession and right to use justifiable force. Writ granted and made peremptory. a. relator was entitled to present evidence of his right to ownership or lawful possession of property and to prove his justifiable use of force and violence to prevent a trespass and demonstrate his lack of culpability 2. State v. Rowland, 509 So. 2d 779 (La. App. 2d Cir. 1987) Juvenile D was adjudged a delinquent child on the ground that he violated a statute prohibiting cruelty to animals by intentionally killing a dog, and he appealed. On Appeal: App. Ct. held that: (1) juvenile was not justified in killing the dog, and (2) in placing juvenile on probation, court had discretion to order restitution. Affirmed. a. juvenile was not justified in shooting dog which was following its master, evidenced no viciousness toward any person and had retreated from alleged attack on juvenile's ducks, and therefore juvenile was properly adjudged delinquent for cruelty to animals by the intentional killing of the dog G. Insanity: 1. State v. Berry, 324 So. 2d 822 (La. 1975) D was convicted of murder, and he appealed. On Appeal: S. Ct. held that the trial court had properly instructed the jury that D had the burden of proving his insanity and that an individual is not relieved of responsibility unless he is determined to be incapable of distinguishing between right and wrong; that by tendering the issue of insanity to the jury, D had waived his right to claim the doctorpatient privilege as to psychiatric medical evidence relevant to determination of the issue; that the coroner was properly permitted to testify concerning a physical examination made of D soon after his arrest; that trial court did not err in permitting testimony by a minister as to admissions made by D in the presence of the minister; that it was not reversible error for the trial court to fail to require the State to produce any oral inculpatory statements made by D; that the proce s verbal and coroner's report were properly admitted; and that it was not err or for the trial court to deny D's request that a witness subpoenaed by D assert his claim of privilege in the presence of the jury. Convictions affirmed. a. individual is not relieved of responsibility for his acts unless he is determined to be incapable of distinguishing between right and wrong, despite contention that a mental defect resulting in an irresistible impulse should also constitute insanity as a matter of law b. in-custody physical examination of accused by state physician for limited purpose of making objective findings as to his physical condition is not protected by the doctor-patient privilege 2. State v. Scott, 344 So. 2d 1002 (La. 1977) D was convicted of manslaughter and he appealed. On Appeal: S. Ct. held that evidence sustained determination that D's statements were voluntarily made; that trial court's instruction that a person could not be found insane due to intoxication was not reversible error; and that photographs of the victim at the
scene of the crime were properly admitted to rebut the contention that D was so intoxicated that he did not have the specific intent to kill or inflict great bodily harm. Affirmed. 3. State v. Necaise, 466 So. 2d 660 (La. App. 5th Cir. 1985) D was convicted of manslaughter arising from shooting death of her husband, and she appealed. On Appeal: App. Ct. held that: (1) error, if any, in excluding D's testimony regarding statements and actions of husband on night of his death was harmless, since evidence was subsequently admitted; (2) testimony of psychiatrist proffered by D which would have attempted to prove that D was victim of "battered women syndrome" and would have sought to establish her state of mind at time of shooting was inadmissible; (3) instructions regarding manslaughter and self-defense were proper; (4) evidence was sufficient to establish that D did not kill husband in self-defense; and (5) sentence of 12 years was not excessive. Affirmed. a. evidence that D's husband was shot twice in back of head and three times in back while he was in bed was sufficient to show that husband did not attack D in such a manner as to bring about a reasonable apprehension by her of death or great bodily injury, and thus, State met burden of showing D did not kill victim in self-defense 4. State v. McDaniel, 515 So. 2d 572 (La. App. 1st Cir. 1987) D was convicted of aggravated rape, and he appealed. On Appeal: App. Ct. held that: (1) D was not entitled to continuance as result of absence of witness; (2) evidence was sufficient to sustain conviction; and (3) life sentence was not unconstitutionally excessive. Affirmed. a. aggravated rape is general intent crime, and therefore, voluntary intoxication cannot be considered as defense to it; necessary criminal intent is generally found in D's intention to become intoxicated in cases where an accused is voluntarily intoxicated at time of commission of offense b. La. does not recognize the doctrine of diminished capacity 5. State v. Johanson, 332 So. 2d 270 (La. 1976) D was convicted of aggravated rape, and he appealed. On Appeal: S. Ct. held that the ten-year old rape victim was competent to testify, that the trial court properly excluded testimony as to whether D was confronted with an impulse he could not resist, and that the trial court properly denied a motion for new trial based on allegations that the jury foreman had taken notes during trial and referred to them during jury deliberations. Affirmed. a. since defense of insanity under current Louisiana law does not include concept of irresistible impulse, it was not error for trial court in rape prosecution to exclude testimony as to whether or not D, at time of crime, was confronted with impulse he could not resist
FINAL EXAM: Format is ESSAY (not multiple choice) Express yourself LOL Closed book test Answer the question that is asked Rules of law are important (cite authority) Know the elements of the crimes!!!! Don't right in the left margin (he marks comments there) Assuming that the professor knows the answer is bad!
Make sure you know each word and phrase in a statute and how the cases relate to it (in your outline) 2 hours (should be able to do it in 1-1.5 hours) Can outline on your scrap paper your acronyms or whatever Code #s and case names are not important Common law is discretionary - you might add it if you want a higher grade

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Criminal Law Outline Based upon class notes - Loyola University (New Orleans) School of Law Fall 2002

Criminal Law - page 1

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