State of Louisiana v. Nicholas S Layburn

STATE OF LOUISIANA * NO. 2019-KA-1061

VERSUS *
COURT OF APPEAL
NICHOLAS S LAYBURN *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 542-954, SECTION “L”
Honorable Franz Zibilich, Judge
******
JAMES F. MCKAY III
CHIEF JUDGE
******
(Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard,
Judge Roland L. Belsome

LEON A. CANNIZZARO, JR.
DISTRICT ATTORNEY ORLEANS PARISH
DONNA ANDRIEU
CHIEF OF APPEALS
SCOTT G. VINCENT
ASSISTANT DISTRICT ATTORNEY
619 S. White Street
New Orleans, Louisiana 70119
COUNSEL FOR STATE/APPELLEE

HOLLI HERRLE-CASTILLO
LOUISIANA APPELLATE PROJECT
P. O. Box 2333
Marrero, Louisiana 70073
COUNSEL FOR DEFENDANT/APPELLANT

REVERSED; CONVICTION AND SENTNCE VACATED

AUGUST 19, 2020

The defendant, Nicholas Layburn, seeks appellate review of the district
JFM
EAL court’s denial of his motions for new trial and for post-verdict judgment of
RLB
acquittal. After reviewing the appellate record and applicable jurisprudence, we

find an error patent warranting the defendant’s acquittal. Accordingly, we reverse

the district court’s judgment and vacate the defendant’s conviction and sentence.

STATEMENT OF CASE

On September 28, 2018, the State filed a bill of information charging the

defendant, Nicholas Layburn, with one count of aggravated arson, in violation of

La. R.S. 14:51. On October 3, 2018, the defendant appeared for arraignment and

entered a plea of not guilty. On November 16, 2018, a preliminary hearing and a

hearing on the defendant’s motion to suppress identification was conducted. On

that date, the district court found probable cause and denied the defendant’s motion

to suppress identification.

A one-day bench trial was conducted on February 20, 2019, following which

the district court took the matter under advisement. On February 25, 2019, the

1

district court returned its verdict, finding the defendant guilty of simple arson with

damage in the amount of less than $500.00 in violation of La. R.S. 14:52(C).

On April 29, 2019, the district court sentenced the defendant as follows:

“Five years in the Department of Corrections, all suspended but three years. So it

is a three-year sentence after which he will be placed on active probation with this

court for two years. He is to receive credit for time served….” On that same date,

the defendant filed a motion for new trial and a motion for a post-verdict judgment

of acquittal, both of which the court denied.

STATEMENT OF FACT

Detective Mark Hall, Sr. (“Hall”), testified that on July 27, 2018, he was

assigned to investigate an arson which occurred at 905 Governor Nicholls Street.

Hall went to the site and observed “a scorched building.” As part of his

investigation, Hall watched surveillance footage, introduced into evidence as

State’s exhibit 1. The video depicted the corner of Governor Nicholls and

Dauphine Streets. A man with blond hair wearing a black t-shirt, khaki shorts, and

black shoes appeared in the upper right-hand corner of the frame. Hall identified

this man as the defendant, Nicholas Layburn. The video reflected the man carrying

a red gasoline container. Hall testified that the gasoline container matched the one

recovered at the site of the fire.

A second video, introduced into evidence as State’s exhibit 2, reflected the

fire itself. Hall estimated that the fire lasted approximately thirty seconds. Shortly

thereafter, the New Orleans Fire Department arrived. At that point, the video

depicted the man running from the scene trying to conceal his identity. Hall

identified defendant at trial as the man depicted in the video.

2

Hall testified that the defendant, whose appearance matched that of the

person depicted in the video footage, was apprehended four days later by the Fire

Marshall. At the time of his arrest, the defendant had in his possession “[a] big

bottle of Jack Daniels.” Hall stated that during his transport to the station,

defendant was upset; he “began kicking the windows of the police vehicle.”

On cross-examination, Hall confirmed that the arson was reported as

occurring at 913 Governor Nicholls Street rather than 905 Governor Nicholls

Street. At the time, 913 Governor Nicholls Street was unoccupied; it was under

construction. The fire was lit on a pile of bricks, which was laid against the left-

hand wall of the home located at 905 Governor Nicholls Street. The red gasoline

container was discovered at 913 Governor Nicholls Street. At no point during his

investigation did Hall hear or learn of any statements made by the defendant to the

effect that he intended to burn down the structure located at 905 Governor Nicholls

Street.

Heidi Raines (“Raines”) testified that she lived at 905 Governor Nicholls

Street which is located next door to 913 Governor Nicholls Street; the houses share

the same property line. Raines first learned of the fire when she walked outside; a

neighbor’s wife told her about it, stating that her husband had witnessed what had

happened. Raines explained that the owners of 913 Governor Nicholls Street were

“redoing their patio” and they had stacked all of the bricks against her wall. When

she surveyed the damage, she “saw some charred kind of debris.” Specifically, her

telephone lines were charred and her cable lines were scorched.

Raines explained that she aided police in their investigation as she obtained

a description of the perpetrator from the neighbor who witnessed the crime and the

description matched a photograph posted by a different neighbor. She spoke to

3

police about the photograph and how it matched the witness’s description. Raines

identified the defendant in court as the person who the witness described and

whose photograph she obtained. On cross-examination, Raines clarified that there

was a pile of bricks at 913 Governor Nicholls Street which was stacked four-feet

high leaning against her wall. Following Raines’ testimony, the State rested.

Bridgette Snow (“Snow”) testified that she was a staff investigator with the

Orleans Parish Public Defenders Office. As part of her investigation of the case at

hand, Snow took photographs of 905 Governor Nicholls Street and took a

“screenshot” of a parcel map of 905 and 913 Governor Nicholls Street. These

photographs were introduced into evidence but were not provided to this Court.

Following Snow’s testimony, the defendant introduced, and the State

stipulated to its authenticity, body-camera footage of Officer Christopher

Jennings(“Jennings”), the initial responding officer, to show the condition of the

left-hand wall of 905 Governor Nicholls Street at the time of the fire. Jennings’

body-camera footage was also not provided to this Court.

Thereafter, Raines was again called as a witness on behalf of the State.

Raines was shown Snow’s photographs of the left-hand wall of her home. Raines

acknowledged that the wall is brick so there was no significant fire damage. She

explained, however, that the fire damage to the telephone and cable lines was not

depicted in the photographs.

ERRORS PATENT; ASSIGNMENT OF ERROR NO. 1

In accordance with La .C.Cr.P. art 920, all appeals are reviewed for errors

patent on the face of the record. After reviewing the record, we find one error

patent which is discussed herein.

4

As noted above, the State filed a bill of information charging the defendant

with one count of aggravated arson. Specifically, the bill of information stated that

the defendant, on July 27, 2018, “… COMMITTTED AGGRAVATED ARSON

OF A DWELLING LOCATED AT 905 GOVERNOR NICHOLLS STREET

BELONGING TO A KNOWN VICTIM, WHEREBY IT WAS FORESEEABLE

THAT HUMAN LIFE MAY HAVE BEEN ENDANGERED….” The district

court, however, found the defendant guilty of simple arson where the damage

amounted to less than $500.00.

La. C.Cr.P. art. 814(28), the applicable law on July 27, 2018, provided that

simple arson where the damage amounted to less than $500.00 is a responsive

verdict for aggravated arson but only “if the words ‘belonging to another and with

damage amounting to _______ dollars’ are included in the indictment.” See State

v. McKithern, 2011-1402, p.13 (La. App. 3 Cir. 5/2/12), 93 So.3d 684, 695, writ

denied, 108 So.3d 782 (La. 2013) (where indictment charging defendant with

aggravated arson did not include the words, “belonging to another and with

damage amounting to _______ dollars,” trial court did not err in instructing that

there were no lesser responsive verdicts to the charge of aggravated arson); State v.

Murphy, 214 La. 600, 605 (La. 1948), 38 So.2d 254, 256 (simple arson is not a

lesser responsive verdict to the crime of aggravated arson unless the indictment

sets forth the amount of the damage done).

In McKithern, supra, the defendant was convicted as charged and

complained on appeal that the trial judge erred in failing to instruct jurors with

regard to a lesser responsive verdict to the charged crime of aggravated arson.

However, because the indictment failed to specify the dollar amount associated

with the damage and that the damage was to property belonging to another, the

5

court properly instructed: “[t]here are no lesser responsive verdicts to the crime of

aggravated arson.” Id., 2011-1402 at p.13, 93 So.3d at 695.

In Murphy, supra, as in the instant matter, the defendant was prosecuted for

the crime of aggravated arson, but was found guilty of simple arson. The

defendant objected, complaining that the verdict was not responsive. Id., 214 La.

at 602, 38 So.2d at 255. The Louisiana Supreme Court agreed, ordering that “the

motion in arrest of judgment is sustained, and the prosecution is ordered

dismissed.” Id., 214 La. at 606, 38 So.2d at 256. More recently, in State v. Price,

2017-0520, p. 8 (La. 6.27/18), 250 So.3d 230, 235, the Louisiana Supreme Court

made clear that the return of a non-responsive verdict “is an implicit acquittal of

the crime[] charged….”

Contrary to the situation in Murphy, in the case at hand, the defendant did

not lodge an objection to the district court’s issuance of a non-responsive verdict.

The defendant’s failure in this regard, however, does not preclude this Court from

ordering that the prosecution be dismissed. The “return of an unauthorized

responsive verdict, even in the absence of an objection, constitutes an error patent,

which is tantamount to an acquittal.” State v. Baugh, 2018-0506, p. 2 (La. App. 4

Cir. 12/19/18), 262 So.3d 312, 313, citing Price, supra; State v. Mayeux, 498 So.2d

701, 702 (La. 1986); State v. Jones, 2013-1118, p. 6 (La. App. 4 Cir. 1/30/14), 156

So.3d 126, 129; State v. Campbell, 95-1409, p. 3 (La. 3/22/96), 670 So.2d 1212,

1213.

In its appellee brief, the State acknowledges that in this case simple arson

was not a responsive verdict. However, as the State points out, under Louisiana

law, “a reviewing court may affirm the conviction if the evidence would have

supported a conviction of the greater offense, whether or not the evidence supports

6

the conviction of the responsive verdict returned by the trier of fact.” State v.

Jeter, 2009-1004, pp. 2-3 (La. App. 3 Cir. 4/7/10), 33 So.3d 1041, 1043, citing

State v. Savoy, 2008-716 (La. App. 3 Cir. 12/10/08), 999 So.2d 285. According to

the State, “the evidence submitted at trial was sufficient to support a conviction for

aggravated arson.”

Whether the evidence presented met the Jackson v. Virginia, 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard appears irrelevant. The factfinder

determined that the State had not proved its case beyond a reasonable doubt and

returned a non-responsive verdict. Under Price, supra, and Murphy, supra, the

non-responsive verdict should operate as an acquittal to the charged offense.

Based on the above, the district court’s issuance of the non-responsive

verdict of simple arson in the amount of less than $500.00 to the charged crime of

aggravated arson, constitutes an error patent. A dismissal of defendant’s

prosecution is therefore warranted.

ASSIGNMENT OF ERROR NUMBER 2

The defendant contends, in this second assignment of error, that there was

insufficient evidence to support his simple arson conviction and, as such, his

motion for post-verdict judgment of acquittal should have been granted.

This Court need not reach this issue because, as discussed above, the non-

responsive verdict returned by the court constitutes the equivalent of an acquittal

and requires that the prosecution be dismissed.

7

ASSIGNMENT OF ERROR NUMBER 3

The defendant contends, in this third assignment of error, that the district

court erred in failing to grant a new trial because the district court improperly

found that the State did not need to prove the property specified in the bill of

information was the subject of the simple arson.

This Court need not reach this issue because, as discussed above, the non-

responsive verdict returned by the court constitutes the equivalent of an acquittal

and requires that the prosecution be dismissed.

CONCLUSION

Based upon the record and applicable jurisprudence, we find that the district

court’s issuance of a non-responsive verdict of simple arson in the amount of less

than $500.00 to the charged crime of aggravated arson, constitutes an error patent,

the defendant’s prosecution is dismissed. Accordingly, we reverse the district

court’s judgment and vacate the defendant’s conviction and sentence.

REVERSED; CONVICTION AND SENTNCE VACATED

8