State Of Louisiana v. Ronald Gasser

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #031
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 29th day of June, 2022 are as follows:
BY McCallum, J.:
2022-K-00064 STATE OF LOUISIANA VS. RONALD GASSER (Parish of Jefferson)
AFFIRMED. SEE OPINION.
Crichton, J., additionally concurs and assigns reasons.

SUPREME COURT OF LOUISIANA

No. 2022-K-00064

STATE OF LOUISIANA

VS.

RONALD GASSER

On Writ of Certiorari to the Court of Appeal, Fifth Circuit, Parish of Jefferson

McCALLUM, J.

“Fear and abhorrence of governmental power to try people twice for the same
conduct is one of the oldest ideas found in western civilization.” Cherry v. Dir., State
Bd. of Corr., 613 F.2d 1262, 1266 (5th Cir. 1980) (quoting Bartkus v. Illinois, 359
U.S. 121, 151-155, 79 S.Ct. 676, 696 (Black, J., dissenting)). Indeed, in 355 B.C.,
Greek orator Demosthenes proclaimed that “the law forbids the same man to be tried
twice on the same issue . . . .”1 This principle was adopted by the framers of the
United States Constitution in the Fifth Amendment’s guarantee that no person shall
“for the same offence . . . be twice put in jeopardy of life or limb .” The double
jeopardy prohibition applies to the states th rough the Fourteenth Amendment as
established by Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056 (1969). Louisiana’s
constitution provides the same safeguard as well. Under Article I, §15, “[n]o person
shall be twice placed in jeopardy for the same offense, except on his application for
a new trial, when a mistrial is declared, or when a motion in arrest of judgment is
sustained.”2

1 David S. Rudstein, A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy,
14 Wm. & Mary Bill Rts. J. 193, 198 (2005); United States v. Jenkins, 490 F.2d 868, 870 (2d Cir.
1973).

2 Similarly, La. C.Cr.P. art. 591 provides: “ No person shall be twice put in jeopardy of life or
liberty for the same offense, except, when on his own motion, a new trial has been granted or
judgment has been arrested, or where there has been a mistrial legally ordered under the provisions
of Article 775 or ordered with the express consent of the defendant.”

2
We granted certiorari in this case to analyze th e constitutional protection
against double jeopardy in the context of a valid conviction later set aside as
unconstitutional. We frame the issue more s pecifically as follows: when a non-
unanimous jury finds a defendant guilty of a lesser, statutorily responsive verdict to
a charged offense, valid at the time of its rendering, if the conviction is later set aside
as unconstitutional, does double jeopardy preclude the State from retr ying the
defendant on the originally charged offense? The lower courts found that it does.
After our review of the procedural history of this case and relevant case law,
we agree with the lower courts that double jeopardy bars the reinstatement and retrial
of a defendant on a higher charge when h e has been lawfully convicted of a lesser
included offense, even though the conviction is later vacated. We further agree with
the lower courts that, in this case, defendant’s conviction of a lesser included offense
operated as an implied acquittal of the higher charge. We thus affirm the trial court’s
ruling, granting defendant’s motion to quash.
FACTS AND PROCEDURAL HISTORY
The underlying facts of this case are not pertinent to our decision and thus
need not be set forth in detail .3 We review only those facts necessary for our
discussion.
This case arises from a 2016 road rage incident that led to the shooting death
of Joseph McKnight. A grand jury indicted th e defendant, Ronald Gasser , on the
charge of second degree murder in connection with Mr. McKnight’s death. The case
proceeded to a trial before a twelve -person jury in January, 2018. The jury was
presented with a verdict sheet listing the crime of second degree murder and three
responsive verdicts: guilty of manslaughter, guilty of negligent homicide and not
guilty. By a vote of ten to two, the jury convicted defendant of the lesser included
3 The facts were fully set forth by the Fifth Circuit in State v. Gasser, 2018-531 (La. App. 5 Cir.
7/3/19), 275 So. 3d 976, 980, writ granted, cause remanded, 2019-01220 (La. 6/3/20), 296 So. 3d
1022, and on reconsideration, 18-531 (La. App. 5 Cir. 7/15/20), 307 So. 3d 1119 (“Gasser I”).

3

offense of manslaughter and defendant was sentenced to thirty years imprisonment
at hard labor.4 The conviction was upheld on appeal. See Gasser I.
Defendant filed a writ application in this Court and, while it was pending, the
United States Supreme Court rendered its opinion in Ramos v. Louisiana, 590 U.S.
___, 140 S.Ct. 1390 (2020), holding that non-unanimous jury verdicts in state felony
cases are unconstitutional. This Court then granted defendant’s writ application and
remanded the case to the Court of Appeal for further proceedings, including an error
patent review based on Ramos.5 Thereafter, and in accordance with Ramos, the Fifth
Circuit found that defendant’s non-unanimous verdict entitled him to a new trial,
vacated defendant’s conviction and sentence, and remanded the case to the trial
court. State v. Gasser , 18-531 (La. App. 5 Cir. 7/15/20), 307 So. 3d 1119, 1121
(“Gasser II”).
After remand, the State filed a notice that it intended to retry defendant on the
original charge of second degree murder. Defendant responded by filing a motion
to quash in which he argued that double jeopardy and the right to appeal barred the
State from reinstituting a prosecution on the higher, second degree murder charge.
The trial court agreed with defendant and granted the motion to quash, finding that
“when the jury came back with the ten to two verdict to convict defendant of
manslaughter, it was a legal verdict and also a legal acquittal of the second degree
murder charge.” State v. Gasser, 21-255 (La. App. 5 Cir. 12/16/21), 335 So. 3d 342,
344 (“Gasser III”). The State appealed this ruling to the Fifth Circuit.

4 The verdict complied with Louisiana law. At the time, and since the 1973 Constitutional
Convention, La. Const. Art. I, § 17 provided that “[a] case in which the punishment is necessarily
confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur
to render a verdict.” Prior to that, the 1921 Constitution provided in Article 7, § 41 that cases “in
which the punishment is necessarily at hard labor, [shall be tried] by a jury of twelve, nine of whom
must concur to render a verdict.”

5 State v. Gasser, 2019-01220 (La. 6/3/20), 296 So. 3d 1022.

4

In Gasser III, the Fifth Circuit affirmed the trial court’s grant of defendant’s
motion to quash . The State had argued that defendant’s conviction by a non -
unanimous jury was a nullity, and, as neither a conviction nor an acquittal, could not
form the basis of a double jeopardy defense. In rejecting that argument, the court
reasoned:
A conviction on a lesser included offense operates as an
acquittal on the greater charged offense. La. C.Cr.P. art.
598; State v. Graham, 14-1801 (La. 10/14/15), 180 So. 3d
271, 277; Green v. United States , 355 U.S. 184, 78 S.Ct.
221, 2 L.Ed.2d 199 (1957). La. C.Cr.P. art. 598(A)
provides: “When a person is found guilty of a lesser degree
of the offense charged, the verdict or judgment of the court
is an acquittal of all greater offenses charged in the
indictment and the defendant cannot thereafter be tried for
those offenses on a new trial.”

* * * * *

At the time of defendant ’s trial in the present case, a
unanimous verdict was not required by Louisiana law in
order to acquit a defendant. Therefore, when the jury
returned a ten to two verdict of guilty of manslaughter, it
served as a vali d acquittal of the second degree murder
charge, precluding retrial of defendant for second degree
murder based on the principles of double jeopardy.

Gasser III, 21-255, pp. 3-4, 335 So. 3d at 346-47.
We granted the State’s writ application to determine the correctness of the
lower courts’ decisions. Because this case presents a legal issue, we apply a de novo
standard of review. State v. Jones, 2015-1232, p. 3 (La. App. 4 Cir. 8/17/16), 200
So. 3d 950, 952, writ denied, 2016-1651 (La. 6/29/17), 222 So. 3d 48 (“As this
matter presents an issue of law, we review it de novo to determine whether the trial
court’s decision is legally correct.”).
LAW AND DISCUSSION
Our task is to determine whether double jeopardy principles bar the State from
reinstituting the charge of second degree murder against defendant. The answer is
found in two equally important considerations, either of which compels a finding

5

that, under the circumstances of this case, double jeopardy precludes the State from
prosecuting defendant on the higher charge of second degree murder when he was
lawfully convicted of the lesser offense of manslaughter. First, any other holding
would thwart the underlying purpose of the double jeopardy doctrine and would run
afoul of both the federal and our state constitutions and other duly enacted statutes.
Second, well-settled case law reflects that the conviction of a lesser included offense
is an implied acquittal of the higher charge s. The importance of this concept is
underscored in its codification by the Louisiana legislature in La. C.Cr.P. art. 598 A,
infra.
Thus, although defendant’s verdict was later vacated as unconstitutional,
because the verdict was valid at the time it was rendered, double jeopardy attached
and defendant cannot be retried for the originally charged offense of second degree
murder. The trial court properly granted defendant’s motion to quash.
“The double jeopardy clauses of the federal and state constitutions protect
against three distinct abuses: a second prosecution for the same offense after
acquittal; a second prosecution for the same offense after conviction; and multiple
punishments for the same offense. ” State v. Johnson , 94-1077 (La. 1/16/96), 667
So. 2d 510, 514. Recognized as fundamental, this double jeopardy protection is an
idea “that is deeply ingrained in . . . the Anglo-American system of jurisprudence.”
Benton, 395 U.S. at 796 (quoting Green, 355 U.S. at 187, 78 S.Ct. at 223). As the
United States Supreme Court made clear, “[t]he prohibition [against double
jeopardy] is not against being twice punished, but against being twice put in
jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy
at the first trial.” See State v. Davenport, 2013-1859, p. 7 (La. 5/7/14), 147 So. 3d
137, 142 (quoting Ball v. United States , 163 U.S. 662, 669, 16 S. Ct. 1192, 1194
(1896)).

6
The traditional tenets of double jeopardy were explained in Yeager v. United
States, 557 U.S. 110, 117, 129 S. Ct. 2360, 2365 (2009) as follows:
[The double jeopardy] Clause embodies two vitally
important interests. The first is the “deeply ingrained”
principle that “the State with all its resources and power
should not be allowed to make repeated attempts to
convict an individual for an alleged offense, thereby
subjecting him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility that even
though innocent he may be found guilty. . . ” The second
interest is the preservation of “the finality of judgments.”
Id., 557 U.S. at 117-18, 129 S. Ct. at 2365-66 (Internal citations omitted).
There have been “ an exceptionally large number of cases interpreting ” the
double jeopardy provision. Yeager, 557 U.S. at 117, 129 S. Ct. at 2365. This Court,
however, has yet to address the precise type of double-jeopardy challenge presented
by this case – the effect of a lawful verdict convicting a defendant of a lesser included
offense that is later set aside as unconstitutional.
In determi ning whether the State is barred from retrying defendant on the
higher charge of second degree murder, we first examine our s tatutory framework
regarding double jeopardy, starting with the general rule that:
[d]ouble jeopardy exists in a second trial only when the
charge in that trial is: (1) Identical with or a different grade
of the same offense for which the defendant was in
jeopardy in the first trial, whether or not a responsive
verdict could have been rendered in the first trial as to the
charge in the second trial. . . .
La. C.Cr.P. art. 596.
We next look to La. C.Cr.P. art. 598 A, which provides for the legal effect of
a guilty verdict:
When a person is found guilty of a lesser degree of the
offense charged, the verdict or judgment of the court is an
acquittal of all greater offenses charged in the indictment
and the defendant cannot thereafter be tried for those
offenses on a new trial.

7

As the Official Comments to Article 598 indicate, “Louisiana follows the str ong
minority rule that a conviction of a lesser [included] offense is a tacit acquittal of the
offense charged, and at the new trial the defendant can be tried only for the offense
for which he was convicted. State v. Harville, 171 La. 256, 130 So. 348 (1930).”
La. C.Cr.P. art. 598, Off. Rev. Cmt. (a).6
Article 598 A thus clearly suggests that, in the case at hand, defendant’s
conviction of manslaughter operated as an acquittal of the highe r charge of first
degree murder. Our inquiry, however, does not end simply by relying on the express
terms of Article 598 A. We must also consider the State’s argument that the jury’s
non-unanimous verdict was a nullity, has no legal effect , and thus, cannot serve as
the basis of a double jeopardy defense.
It is true that the general rule set forth in Article 598 A is not absolute. Nor is
the Fifth Amendment’s prohibition against double jeopardy absolute. See Justices
of Boston Mun. Court v. Lydon , 466 U.S. 294, 308, 104 S.Ct. 1805 (19 84)(“[t]he
Double Jeopardy Clause is not an absolute bar to successive trials.”). This was made
clear by the Supreme Court in Burks v. United States, 437 U.S. 1, 14, 98 S. Ct. 2141,
2149 (1978): “The principle that [the Double Jeopardy Clause] does not pr eclude
the Government’s retrying a defendant whose conviction is set aside because of an
error in the proceedings leading to conviction is a well -established part of our
constitutional jurisprudence.” (Citation omitted).
Consistent with this general rule, certain circumstances allow the State to retry
a defendant on an original charge after his conviction on a lesser included offense
has been set aside . A conviction obtained in a court lacking jurisdiction, for

6 In Harville, the defendant was charged with murder but convicted of manslaughter. Because of
improper jury instructions, the verdict was set aside . On the issue of whether the defendant was
entitled to bail (manslaughter was a bailable offense whereas murder was not), this Court held that
“retrial is granted only on the offense on which there has been a conviction” and thus, “the only
charge pending against [defendant] is that of manslaughter.” Id., 130 So. at 350.

8

example, “is, without doubt, a null conviction” and therefore void. State v. Langley,
2006-1041, p. 8 (La. 5/22/07), 958 So. 2d 1160, 1165.
Other examples of circumstances that allow a retrial include those situations
where there is no actual determination of a defendant’s guilt. A mistrial ordered
when a jury deadlocks, obviously, does not raise double jeopardy concerns when a
defendant is retried. See Blueford v. Arkansas, 566 U.S. 599, 132 S. Ct. 2044 (2012);
Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S. Ct. 732 (2003).7
Nor is the prohibition against double jeopardy invoked when a jury’s verdict
does not expressly convict or acquit defendant of an offense. In the recent decision
of State v. Broussard , 2020-547 (La. App. 3 C ir. 4/14/21), 318 So. 3d 319, writ
denied, 2021-00669 (La. 9/27/21), 324 So. 3d 91 , for example, the defendant was
charged with manslaughter and aggravated obstruction of a highway (the felony
underlying the manslaughter charge). The charges were severed and after a trial on
the manslaughter charge, the defendant was convicted by an eleven -to-one verdict
of negligent homicide. After the conviction was set aside based on Ramos, the State
sought to retry the defendant on the negligent homicide and obstruction of a highway
charges. The defendant moved to q uash the bill of information, arguing that, in
convicting him of negligent homicide, the jury rejected the State’s claim that the
homicide occurred during the aggravated obstruction of a highway. Thus, the
defendant argued, double jeopardy precluded the S tate from trying him on the
aggravated obstruction of a highway charge. The trial court agreed and granted the
motion to quash. The Third Circuit reversed.

7 In Blueford, a jury was presented with several offenses, ranging from capital murder to negligent
homicide. During deliberations, the jury reported that it could not reach a verdict and upon
questioning by the trial judge about its progress, advise d that it was unanimous against guilt for
capital murder and first -degree murder, was deadlocked on manslaughter and had not voted on
negligent homicide. A mistrial was ultimately declared and when the State sought to retry the
defendant, he moved to dismiss the charges of capital murder and first-degree murder. The Court
held that, because the jury was unable to return a verdict, it neither convicted nor acquitted the
defendant of any offense and thus, double jeopardy did not “stand in the way of a secon d trial on
the same offenses.” Id., 566 U.S. at 610, 132 S. Ct. at 2053.

9

The Broussard decision focused mainly on State v. Goodley, 423 So. 2d 648,
651 (La.1982), 8 the invalidity of the verdict under Ramos, and a discussion of
whether the State was collaterally estopped from charging the defendant with
aggravated obstruction of a highway at his retrial. Of importance to the instant
matter, the Court also found that double jeopardy did not apply on other grounds as
well. Noting that there were multiple possibilities for the jury’s verdict , this
rendered any attempt to determine whether the jury made a finding on the aggravated
obstruction of a highway charge “a speculative endeavor.” Id., 2020-547, p. 17, 318
So. 3d at 329. Thus, because the jury had not unambiguously decided whether the
defendant committed aggravated obstruction of a highway, double jeopardy did not
bar the State from trying the defendant on the agg ravated obstruction of a highway
charge. Id., 2020-547, p. 8, 318 So. 3d at 324.
Similarly, in In re State ex rel. M.L.L ., 2008-363 (La. App. 3 Cir. 8/20/08),
994 So. 2d 600, 605, the trial judge found that the State failed to prove that a minor
committed the charged offense of aggravated burglary. The minor was adjudicated
delinquent for one or more of the seven lesser included offenses; however, the
adjudication was unclear as to which of the offenses he had committed. While the
court’s acquittal of the higher offense was affirmed under La. C.C.Pr. art. 598 A, the
purported adjudication of lesser included offenses wa s not valid, warranted t he
reversal of the adjudication, and a remand to the trial court for further proceedings.
Likewise, in State v. Campbell, 95-1409, (La. 3/22/96), 670 So. 2d 1212, the
jury returned verdicts of “attempted” jury tampering to the charge of jury tampering.
Noting that “attempted jury tampering is jury tampering” and neither a lesser
included nor responsive verdict, this Court found the verdicts to be illegal. Id., 95-

8 In Goodley, we found that a non-unanimous verdict of manslaughter in a capital murder trial was
invalid and, thus, was equivalent to no verdict, either of a conviction or an acquittal. Thus, the
State could retry the defendant for capital murder when the conviction was set aside. We discuss
Goodley more fully infra.

10
1409, p. 4, 670 So. 2d at 1213 ( Emphasis supplied). That is, because the jury’s
verdicts were “insolubly ambiguous[,] . . . the jury did not clearly convict or acquit
relators of the charged offenses.” Id., 95-1409, p. 5, 670 So. 2d at 1213.
Accordingly, there was no implied acquittal of the higher charge as provided by
Article 598 A. See also State v. Joshlin, 2000-2921, p. 5 (La. App. 1 Cir. 11/9/01),
804 So. 2d 106, 109 (where a verdict of attempted in surance fraud was invalid
because “attempted insurance fraud is insurance fraud,” double jeopardy concerns
did not bar a ret rial on the higher charge; the court could not say “that the jury’s
return of the purportedly lesser verdict of attempt necessarily and implicitly
acquitted the defendant of any material element of the charged offense, or that the
verdict necessarily represented an expression of jury lenity despite the weight of the
evidence presented.”).
The foregoing cases are illustrative of circ umstances under which the State
may reinstitute a higher charge against a defendant when his conviction on a lesser
charge is set aside. One common factor predominates in these cases . Unlike the
case at hand, in the cases in which the retrial of a defendant on a higher charge was
permitted, the vacated verdicts were invalid because there was no decision made as
to the ultimate question of the defendant’s guilt and, thus, there were no double
jeopardy implications. We note that, when a verdict is invalid at its rendering, a trial
court is not without recourse. Under La. C.Cr.P . art. 813, “[i]f the court finds that
the verdict is incorrect in form or is not responsive to the indictment, it shall refuse
to receive it, and shall remand the jury with the necessary oral instructions.” As our
jurisprudence indicates, where a “verdict is clearly non -responsive,” it should [be]
refused by the trial court in accordance with Article 813.” State v. Thibodeaux, 380
So. 2d 59, 61 (La. 1980 ). See also, State v. Latique , 2018-622, p. 13 (La. App. 3
Cir. 2/20/19), 265 So. 3d 93, 103, writ denied, 2019-00707 (La. 10/8/19), 280 So.
3d 593 (where “the first jury verdict d id not clearly convey the jury’s intention[,]

11

[in] accordance with [La. C.Cr.P.] art. 813, the trial court properly refused to receive
the first verdict, properly re -instructed the jury, and properly returned the jury for
further deliberation with a new verdict form.”).
Notably, though, w here a decision has been made as to a defendant’s guilt
through a valid verdict by a jury (or judge), double jeopardy concerns are raised. An
outright acquittal, of course, “terminates the original jeopardy.” Richardson v.
United States, 468 U.S. 317, 325, 104 S. Ct. 3081, 3086 (1984). Whether a valid
verdict of a lesser included offense, later vacated as unconstitutional, implicates
double jeopardy as to the higher offense is an issue unprecedented in this State. We
are guided, however, by the abundant jurisprudence addressing double jeopardy
issues.
We start with the early Supreme Court decision of Ball, supra, which
emphasized the absolute finality of an acquittal. Although Ball did not involve the
retrial of a defendant on a higher charge after his conviction on a lesser included
offense was set aside, we find the decision to be instructive.
In Ball, two out of three defendants were found guilty of murder; the third was
found not guilty. After the convictions were set aside because of a fatally defective
indictment, all three were retried and found guilty. As to the defendant who had
previously been found not guilty, the Supreme Court held that “[t] he verdict of
acquittal was final, and could not be reviewed, on error or otherwise, without putting
him twice in jeopardy, and thereby violating the constitution.” Id., 163 U.S. at 671,
16 S. Ct. at 1195. Thus, “a verdict of acquittal . . . is a bar to a subsequent prosecution
for the same offense. ” Id. The other defendants, however, were properly retried,
because, as the Court reasoned, “a defendant who procures a judgment against him
upon an indictment to be set aside may be tried anew upon the same indictment, or
upon another indictment, for the same offense of which he had been convicted.” Id.,
163 U.S. at 672, 16 S. Ct. at 1195

12
The Supreme Court has continued to follow Ball and hold that an acquittal,
no matter how flawed, is final and unassailable. In the oft-cited Supreme Court case
of Green, supra, the defendant was charged with arson and felony murder in the
commission of arson; he was convicted of arson and the lesser included offense of
second degree murder. The jury expressed no finding on the felony murder charge.
After he successfully appealed his second degree murder conviction, the defendant
was retried under the original indictment and found guilty of felony murder. He then
appealed the conviction on the basis that the second trial violated his constitutional
right against double jeopardy.
Noting that under the Fifth Amendment, “a verdict of acquittal is final, ending
a defendant’s jeopardy, ” the Supreme Court held that the “second trial for first
degree murder placed Green in jeopardy twice for the same offense in violation of
the Constitution.” Id., 355 U.S. at 188, 78 S.Ct. 223-24. The Court reasoned:
When given the choice between finding [Green] guilty of
either first or second degree murder[,] [the jury] chose the
latter. In this situation the great majority of cases in this
country have regarded the jury’s verdict as an implicit
acquittal on the char ge of first degree murder. But the
result in this case need not rest alone on the assumption,
which we believe legitimate, that the jury for one reason
or another acquitted Green of murder in the first degree.
For here, the jury was dismissed without retu rning any
express verdict on that charge and without Green’s
consent. Yet it was given a full opportunity to return a
verdict and no extraordinary circumstances appeared
which prevented it from doing so. Therefore it seems clear,
under established principl es of former jeopardy, that
Green’s jeopardy for first degree murder came to an end
when the jury was discharged so that he could not be
retried for that offense. Wade v. Hunter, 336 U.S. 684, 69
S.Ct. 834, 93 L.Ed. 974. In brief, we believe this case can
be treated no differently, for purposes of former jeopardy,
than if the jury had returned a verdict which expressly
read: ‘We find the defendant not guilty of murder in the
first degree but guilty of murder in the second degree.’
Id., 355 U.S. at 190-91, 78 S. Ct. at 225.

13
The Green Court, thus, found that the jury considered the higher charge, but
rejected it in favor of the lesser included offense; its silence was equivalent to an
acquittal of the higher charge. Of course, double jeop ardy would have attached if
the jury had specifically entered a not-guilty verdict on the higher charge. As we
can infer from Green, there is no appreciable difference between a jury’s expressly
entering a not-guilty verdict on a higher charge and its opting to convict on a lesser
included charge, when, although silent on the higher charge, the jury had the
opportunity to weigh both charges. By contrast, “where the jury expressly indicates
that it is unable to reach an agreement on the greater charge, a conviction on a lesser
included offense does not constitute an implied acquittal of the greater offense and
presents no bar to retrial on the greater offense.” United States v. Williams, 449 F.3d
635, 645 (5th Cir. 2006)(quoting United States v. Bordeaux , 121 F.3d 1187, 119 3
(8th Cir. 1997)).
The effect of an acquittal was also at issue in Fong Foo v. United States, 369
U.S. 142, 82 S. Ct. 671 (1962). There, during the course of a trial, the judge ordered
the jury to acquit the defendants.9 Because the trial judge had no authority to direct
an acquittal, the prosecutors moved to set it aside, at which time, the defendants
raised the defense of double jeopardy. Relying on Ball, the Fong Foo Court made
two important observations – (1) the de fendants had been tried under a valid
indictment, and (2) the case did not terminate prior to the entry of a final judgment.
Rather, it “terminated with the entry of a final judgment of acquittal as to each
petitioner.” Id., 369 U.S. at 143, 82 S. Ct. at 672. Under these circumstances,
although, “the acquittal was based upon an egregiously erroneous foundation,” it
was final and double jeopardy barred a retrial. Id., 369 U.S. at 143, 82 S. Ct. at 672.
9 The trial court’s action “was based upon one or both of two grounds: supposed improper conduct
on the part of the Assistant United States Attorney who was prosecuting the case, and a supposed
lack of credibility in the testimony of the witnesses for the prosecution who had testified up to that
point.” Id., 369 U.S. 142, 82 S. Ct. at 671.

14
See also, Evans v. Michigan , 568 U.S. 313, 318, 133 S. Ct. 1069, 1074 (the trial
court’s directed verdict during trial, based the erroneous requirement of an extra
element for the charged offense, was an acquittal for double jeopardy purposes; “A
mistaken acquittal is an acquittal nonetheless.”).
That an acquittal serves to bar a subsequent prosecution has been repeatedly
reiterated by the Supreme Court. See Arizona v. Washington, 434 U.S. 497, 503, 98
S. Ct. 824, 829 (1978)(“The constitutional protection against double jeopardy
unequivocally prohibits a second trial following an acquittal. The public interest in
the finality of criminal judgments is so strong that an acquitted defendant may not
be retried even though ‘ the acqu ittal was based upon an egregiously erroneous
foundation.’”)(Citation omitted); United States v. DiFrancesco, 449 U.S. 117, 132,
101 S. Ct. 426, 435 (1980)(“It is acquittal that prevents retrial even if legal error was
committed at the trial. ”); United States v. Scott , 437 U.S. 82, 91, 98 S. Ct. 2187,
2194 (1978)(“[T]he law attaches particular significance to an acquittal. To permit a
second trial after an acquittal, however mistaken the acquittal may have been, would
present an unacceptably high risk that the Government, with its vastly superior
resources, might wear down the defendant so that ‘even though innocent, he may be
found guilty.’”); Burks, 437 U.S. at 16, 98 S. Ct. at 2150 (“[W]e necessarily afford
absolute finality to a jury’ s verdict of acquittal —no matter how erroneous its
decision”)(Emphasis supplied).
The general rule set forth in Ball , Green and Fong Foo – that the Fifth
Amendment’s prohibition against double jeopardy attaches to a verdict of acquittal,
even one that is clearly erroneous – has been consistently applied by this Court and
other courts of this state as well. See, e.g., State v. Hurst, 367 So. 2d 1180, 1181
(La. 1979) (even where “an acquittal was clearly erroneous,” “‘a verdict of
acquittal is final, ending a defendant ’s jeopardy, and . . . is a bar to a subsequent
prosecution for the same offense.’”)(Citation omitted); State v. Sims, 53,791, p. 20

15

(La. App. 2 Cir. 6/30/21), 322 So. 3d 902, 913 (although “a verdict that is both non-
responsive and a non-crime is wholly invalid and can serve neither as a conviction
or acquittal, we nevertheless find such a verdict is an implicit acquittal of the crime
charged, and as an acquittal, express or implied, it is a bar to any subsequent
prosecution of the charged offense.”)(Emphasis supplied).
More importantly for our purposes in this case, our jurisprudence clearly
reflects that an acquittal may be express or “implied by conviction of a lesser
included offense when a jury is given a full opportunity to convict a defendant on
the greater charge.” State v. Sloan, 32,101, p. 7 (La. App. 2 Cir. 8/18/99), 747 So.
2d 101, 106 (citing Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757 (1970)); Ohio v.
Johnson, 467 U.S. 493, 502, 104 S. Ct. 2536, 2542 (1984)(an “‘implied acquittal’ .
. . results from a verdict convicting a defendant on lesser included offenses rendered
by a jury charged to consider both greater and lesser included offenses.”); See also,
Green, supra. In Price, the Supreme Court made clear that a verdict of a lesser
included offense allows a retrial “limited to the lesser offense,” observing that the
Court “has consistently refused to rule that jeopardy for an offense continues after
an acquittal, whether that acquittal is express or implied by a conviction on a lesser
included offense when the jury was given a full opportunity to return a verdict on
the greater charge.” Id., 398 U.S. 323, 327-29, 90 S. Ct. 1757, 1760-61 (1970).
That this is a long-standing rule is evidenced by this Court’s early decision in
State v. Elmore, 155 So. 896, 899 (La. 1934):
[W]here an accused is prosecuted for murder and
convicted of manslaughter, the result of such conviction is
an acquittal of the charge of murder, and, in case the
conviction for manslaughter is set aside on appeal and the
case is remanded for retrial, the accused cannot again be
prosecuted for murder, and, if tried again, must be tried for
manslaughter.

We again examined this principle in State v. Langley , 2006 -1041 (La.
5/22/07), 958 So. 2d 1160. There, the defendant was tried and convicted of first

16

degree murder. His conviction was later vacated because of improprieties in the
grand jury indictment. He was re-indicted for first degree murder and convicted of
the lesser offense of second degree murder. This convict ion, too, was set aside
because of reversible error on the trial judge’s part in absenting himself from
portions of the trial. The court of appeal found this error to render the verdict
absolutely null, resulting in neither a conviction of second degree murder nor an
acquittal of first degree murder. When the State again indicted the defendant for
first degree murder, he moved to quash the indictment on double jeopardy grounds.
The trial court granted the motion and limited the defendant’s retrial to th e charge
of second degree murder. The appellate court reversed, based on its earlier
determination that the verdict was an absolute nullity.
Thereafter, this Court reinstated the trial court’s order limiting the prosecution
to second degree murder . Alt hough we recognized that the trial judge’s absence
required the reversal of the defendant’s conviction, we held that “ the unanimous
verdict of guilty of second degree murder returned by [the] jury . . . implicitly
acquitted him of first degree murder.” Id., 2006-1041, 958 So. 2d at 1170. We
further noted that “the verdict rendered by the jury was a legal verdict and should be
given effect pursuant to La. C.Cr.P. art. 598(A).” Id.
We reached the same result in Graham, supra. There, the defendant was
charged with aggravated incest and at the close of trial, when it became evident that
the State could not meet its burden of proof on that charge, the trial court allowed it
to add the charge of molestation of a juvenile as a re sponsive verdict. The jury
convicted the defendant of the responsive verdict. This Court found that, although
molestation of a juvenile is not a lesser included offense of aggravated incest, and
the trial was rendered “fundamentally unfair” by the State’s adding the “responsive
verdict,” the jury had been given a full opportunity to return a guilty verdict on the
charged offense and chose not to. Id., 2014-1801, p. 2 (La. 10/14/15), 180 So. 3d at

17

273. Thus, we held that “the jury’ s return of what it was instructed was a lesser
responsive verdict is an implied acquittal of the charge of aggravate d incest, which
ended defendant’s jeopardy and is a bar to a subsequent prosecution. ” Id., 2014-
1801, p. 11, 180 So. 3d at 278.10
Applying these principles to the instant case, only one conclusion can be
drawn. Defendant’s conviction of the lesser included offense of manslaughter was
an implied acquittal of the second degree murder charge and the State may not retry
defendant for second degree murder. The Stat e is limited to the charge of
manslaughter.
The jury in this case, after a full trial on the merits, chose not to convict
defendant of the greater charge of second degree murder. F or reasons known only
to it, the jury instead convicted him of the lesser i ncluded offense. A lthough
defendant’s conviction for manslaughter was vacated, the conviction still operated
as an implied acquittal of second degree murder. The jury had the opportunity to
convict defendant of second degree murder and did not. The acquittal thus bars a
retrial on that charge . As the Supreme Court noted in Burks, the prosecution has
“one fair opportunity to offer whatever proof it [can] assemble” to obtain a
conviction. Burks, 437 U.S. at 16, 98 S. Ct. at 2150. “The Double Jeopardy Clause
forbids a second trial for the purpose of affording the prosecution another
opportunity to supply evidence which it failed to muster in the first proceeding;” this
concept is “central to the prohibition against successive trials.” Id., 437 U.S. at 11,
98 S. Ct. at 2147.

10 See also, State v. Thomas, 05-2373, p. 2 (La.4/17/06), 926 So. 2d 490, 491 (the “jury’s return of
a lesser verdict of attempted aggravated burglary at [defendant’s] first trial thereby acquitted him
of the charged offense of aggravated burglary.”); State v. Wooten , 67 So. 366, 366 (1915) (“a
verdict for manslaughter. . . had the effect of acquitting the accused of murder, and reducing the
charge against him to manslaughter, and of precluding his ever being tried again on the same facts
for murder.”); State v. Breaux, 96-1516, p. 2 (La. App. 3 Cir. 4/30/97), 693 So. 2d 326, 327 (“the
defendant, having already been found guilty of a lesser included offense, may not be retried on a
charge of aggravated damage to property. To do so would be to expose him to double jeopardy.”).

18

This is not a case where the jury’s verdict was invalid. We recognize that
defendant could not today be convicted by a ten-to-two verdict, as a non-unanimous
jury is no longer constitutionally permissible . But, at the time that the verdict was
rendered, Louisiana law only required ten jurors for a felony conviction. The verdict
was legal and, accordingly, double jeopardy attached. Although it was subsequently
set aside, this does not change the basic nature of the verdict as an implied acquittal
of the higher charge. Like a mistaken acquittal, an implied acquittal is an acquittal
nonetheless. And, a “v erdict of acquittal [is] final, and [cannot] be reviewed . . .
without putting [the defendant] twice in jeopardy, and thereby violating the
constitution. Fong Foo, 369 U.S. at 143, 82 S. Ct. at 672 (quoting Ball, 163 U.S. at
671, 16 S.Ct. at 1195).
At this point, we address two of the cases cited by the State – Davenport,
supra, on which the State heavily relies, and State v. Mayeux, 498 So. 2d 701 (La.
1986). In both cases, we found that principles of double jeopardy did not bar the
retrial of the defendants because the verdicts were deemed invalid or illegal at their
rendering.
In Davenport, the trial judge, acting without authority, ordered the jury to
acquit the defendant during the course of trial and, after realizing his mistake, then
declared a mistrial. This Court found that, although the mistrial was properly
granted, the trial court’s directed verdict, taken without legal authority, “is ultra vires
and . . . of no effect.” Id., p. 20, 147 So. 3d at 150. Accordingly, it did not bar “a
subsequent prosecution for the same offense.” Id., p. 22, 147 So. 3d at 151. Citing
Goodley, we explained that “ a verdict r endered contrary to constitutional and
statutory authority is invalid and illegal . . . . Thus, an illegal verdict acts as neither
an acquittal nor a conviction. ” Id., pp. 20 -21, 147 So. 3d 150 (Internal citations
omitted).

19

Similarly, in Mayeux, the defendant was charged with aggravated battery and
the jury convicted him of attempted aggravated battery, a crime not recognized under
Louisiana law, but presented to the jury as a responsive verdict. Also relying on
Goodley, this Court found the ve rdict to be illegal because it contained a
“nonwaivable defect,” and was “simply [a] conviction of a non-crime. Id., 498 So.
2d at 705. Thus, double jeopardy did not bar the State from retrying the defendant
under those circumstances.
Notably, b oth defen dants in Davenport and Mayeux thereafter sought and
obtained habeas relief in federal court. In Davenport, the federal court held that
“applicable federal constitutional standards [were] not met” when the defendant was
subjected to the second trial, concluding that “the State of Louisiana is barred from
subjecting Petitioner to a second trial for the aggravated rape charge for which he
was acquitted by the Louisiana district judge” and ordered the defendant “release[d]
. . . immediately.” Davenport v. Richardson, 2016 WL 285060 (W.D. La. Jan. 20,
2016). In the underlying Report and Recommendation adopted by the court, the
magistrate stated:
. . . the trial judge’s acquittal in this case bars a second trial
no matter whether the judge was mistaken regarding his
assessment of the adequacy of the evidence or whether he
was in violation of state procedural law when he entered
the acquittal. It is no more ultra vires for a trial judge to
violate a procedural rule than to invent new elements of a
crime o r otherwise violate substantive law, and the
Supreme Court has rejected a second trial in those
situations.

Davenport v. Richardson, No . 14-CV-1092, 2015 WL 9906262, at *7 (W.D. La.
Apr. 29, 2015).
In Mayeux, the federal court found that by returning a ve rdict of “guilty of
attempted aggravated battery ,” the jury implicitly acquitted [the defendant] of the
crime of “aggravated battery.” Mayeux v. Belt , 737 F. Supp. 957, 960 (W.D. La.
1990). The Court stated:

20

Even though the verdict of the jury at Mayeux’s first trial
could operate neither as a conviction nor acquittal o f the
non-crime of “attempted aggravated battery”, there is no
reason why it could not operate as an acquittal of the
charge of aggravated battery, because the judge’s
instructions so directed. Even though the judge’s
instructions concerning a possible verdict of “atte mpted
aggravated battery” were egregiously erroneous, that
judicial error does not give the State a basis for retrying
Mr. Mayeux.

Id., 737 F. Supp. at 961-62.
Several decisions of this Court questioned the continued viability of Mayeux.
(See State v. Graham , 2014 -1801, p. 10 (La. 10/14/15), 180 So. 3d 271, 278 ;
Campbell, 96-1405, p. 4, 670 So. 2d at 1214). Other courts have continued to follow
the ruling in Mayeux, despite the federal court’s decision. See, e.g., State v.
Anderson, 2017-0927 (La. App. 1 Cir . 4/6/18), 248 So. 3d 415, writ denied, 2018-
0738 (La. 3/6/19), 266 So. 3d 901 ; State v. Marsh , 2017 -0584 (La. App. 4 Ci r.
11/8/17), 231 So. 3d 736; State v. Nazar, 96-0175 (La. App. 4 Cir. 5/22/96), 675 So.
2d 780.
This Court has now foreclosed any doubt as to Mayeux’s continued validity.
In State v. Brown , 2021 -1336, p. 4, 2021-01336 (La. 2022), --- So. 3d ----, we
“explicitly overrule[d] that portion of the Mayeux decision that found that a
conviction ‘for a crime unresponsive [to the charged offense] and unspecific in our
criminal law . . . operate[s] neither as a conviction no r acquittal.’” In Brown, we
found that the defendant’s conviction for attempted aggravated flight from an
officer, a non -crime, but one presented to the jury as responsive to the offense of
flight from an o fficer, was properly set aside. However, in agreement with t he
federal court’s rationale in Mayeux, we found that, although the trial court’s
instructions to the jury were erroneous, “that error did not give the State a basis for
retrying defendant for aggravated flight from an officer in violation of the Double
Jeopardy Clause.” Id., p. 5, --- So. 3d at ----.

21

Neither this Court nor any other court of this State has considered whether our
decision in Davenport remains legally sound and we need not address its continued
viability at this time. We can readily distinguish Davenport from the case at hand.
Unlike Davenport, where the trial judge ordered the defendant’s acquittal, here, the
jury returned a verdict to which double jeopardy clearly attached.
We also find it necessary to reconsider our decision in Goodley, a case upon
which the Fifth Circuit relied in Gasser III, and on which the State relies in this case.
In Goodley, the defendant was indicted on the charge of first degree murder, but
convicted by a ten-to-two jury of manslaughter. On appeal, he raised only the issue
of the excessiveness of his sentence. In an error patent review, however, this Court
found the verdict to be invalid because a unanimous verdict is required on a capital
murder charge, even for a responsive verdict. The trial court’s instruction to the jury
that only ten had to agree to a responsive verdict was therefore reversible error.
Although, ordinarily, a conviction of a lesser included offense has the effect of an
acquittal of a higher offense, under the circumstances presented, the defendant had
not been validly convicted of manslaughter and thus, he had not been acquitted of
first degree murder. We found that d ouble jeopardy did not bar the state from
retrying the defendant on the first degree murder charge.11
Based on our decision in Brown and our finding therein overruling Mayeux,
we now conclude that the evolving case law regarding double jeopardy mandates
that we now also overrule Goodley. The trial judge in Goodley, like the trial judge
in Mayeux, improperly instructed the jury. Although the trial judge was egregiously

11 We note that, in a later decision, this Court found that Goodley could not be retried for first
degree murder; however, the decision was not based on the any double jeopardy concerns. In fact,
we reiterated that principles of double jeopardy did not preclude the defendant’s retrial on first
degree murder and found that there was no verdict because “ the ten to two verdict handed down
by the jury at [the] first trial could constitute neither a conviction of manslaughter nor an acquittal
of murder.” State v. Goodley, 423 So. 2d 648, 650 (La. 1982). We did, however, find that a retrial
for first degree murder would unconstitutionally impair the defendant’s right to appeal. Id., 423
So. 2d at 650. We reached this conclusion because of the “unique factual situation presented” and
our finding that a second prosecution for first degree murder would have a “chilling effect” on his
right to appeal insofar as he would again face the possibility of a death sentence.

22

erroneous in his instruction to the jury that it could convict the defendant of
manslaughter by a ten to two verdict, consistent with Brown, the error in Goodley
did not allow the State to retry him for capital murder. To the contrary, the State
should have been limited to the charge of manslaughter on retrial.
We do, however, take note of certain language from Goodley. Our holding in
Goodley was premised on t he principle that “[w]here no valid judgment has been
obtained, the defendant’s double jeopardy interests simply cannot be considered to
extend so far as to compel society to relinquish its interest in punishing one whose
guilt is clear by means of a fair and procedurally accurate trial.” Id., 423 So. 2d at
651. (Emphasis added). This continues to comport with double jeopardy principles
when a verdict is vacated because it does not validly co nvict a defendant of an
offense, as the decisions in Broussard, Campbell and Joshlin indicate. The corollary
to this principle is that a very different result is reached when a valid judgment has
been obtained, as double jeopardy clearly attaches to a valid judgment.
Because we have found that the State may not retry defendant on the charge
of second degree murder, we find it unnecessary to address defendant’s argument
that there would be a chilling effect on his constitutional right to appeal if the State
is allowed to retry him on the higher charge of second degree murder. We therefore
pretermit a discussion of that issue.
We likewise find it unnecessary to address the issue of whether a non -
unanimous verdict is required for an acquittal post -Ramos. First, Ramos only
addressed the constitutionality of non -unanimous verdicts to convict and made no
findings with respect to acquittals . Second, the only issue before this Court is
whether the State may retry defendant on the higher charge of second degree murder.
Whether a unanimous jury is required for an acquittal has no impact on the issue in
this case. Even assuming, for purposes of argument, that a unanimous verdict is
required for an acquittal post -Ramos, because defendant’s conviction for

23

manslaughter was legal and valid at the time that it was rendered, it operated as an
acquittal of second degree murder, as we have found. Thus, although we express no
opinion on this issue at this time, even if unanimity is now required for an acquittal,
this rule cannot invalidate a lawful acquittal, even one implied by the conviction of
a lesser included offense. Again, an acquittal is unassailable. The issue of unanimity
in a jury’s acquittal is simply not before the Court in this case and we decline to issue
any prospective advisory opinion on this issue.
DECREE
For the foregoing reasons, we find that defendant’s conviction of the lesser
included offense of manslaughter impliedly acquitted him of the higher charge of
second degree murder and, thus, double jeopardy bars the State from retrying
defendant on the higher charge. As the Supreme Court found in Price and we found
in Langley, a retrial is limited to the lesser offense of manslaughter. Defendant’s
motion to quash the second degree murder indictment was properly quashed and we
therefore affirm the lower courts’ rulings.
AFFIRMED

1
S
UPREME COURT OF LOUISIANA
No
. 2022-K-0064
S
TATE OF LOUISIANA
VS.
RONALD GASSER
On
Writ of Certiorari to the Court of Appeal,
Fifth Circuit, Parish of Jefferson
C
richton, J., additionally concurring:
I agree with the majority that the constitutional protections against double
jeopardy would be violated by retrying defendant for the originally charged crime
here. I write separately, because I also believe defendant’s constitutional right to
appeal would be impermissibly chilled if he was retried for second degree murder
after his conviction for the lesser included offense of manslaughter was set aside on
appeal. See generally La. Const. art. 5, § 10 (providing for appellate jurisdiction over
criminal cases); La. Const. art. 1, § 22 (“All courts shall be open, and every person
shall have an adequate remedy by due process of law and justice, administered
without denial, partiality, or unreasonable delay, for injury to him in his person,
property, reputation, or other rights.”).
Due process of law requires that avenues of appellate review, once
established, must be kept free of obstacles that impede open and equal access to the
courts. Rinaldi v. Yeager, 384 U.S. 305 (1966). Any penalization, even incidental,
for those who choose to exercise constitutional rights “ would be patently
unconstitutional.” United States v. Jackson, 390 U.S. 570, 581- 82 (1968). Appeals
have always been favored in Louisiana . Davidge v. Magliola, 346 So. 2d 177 (La.
1977) (“The law favors appeals.”).

2

This Court discussed the right to appeal in State v. Goodley , 423 So. 2d 648
(La. 1982). Though this Court now overrules the portion of Goodley that concluded
double jeopardy did not bar retrial of that defendant, it is important, in my view, to
emphasize that the Court today leaves intact the portion of Goodley concerning the
right to appeal ––the issue that this Court ultimately found prevented Goodley’s
retrial.
In that case, the State charged defendant in Goodley with first degree murder
and the jury returned a nonunanimous verdict of guilty on the responsive charge of
manslaughter. The court sentenced him to 15 years imprisonment at hard labor, and
Goodley appealed only his sentence on the basis that it was unconstitutionally
excessive. This Court, finding as an error patent the nonunanimous jury verdict,
1
vacated the conviction and sentence. On remand, the State sought to retry defendant
on a charge of first degree murder and defendant filed a motion to quash, alleging a
violation of his r ight to appeal and the prohibition against double jeopardy. This
Court found that although retrying defendant on a charge of first degree murder did
not violate the prohibition against double jeopardy —a finding ov erruled today—it
did violate defendant’s right to appeal. This Court summarized the right to appeal
and its implications as follows:
Louisiana Code of Criminal Procedure article 912.1 and Article I, § 19
of the 1974 Louisiana Constitution guarantee a defendant in a felo ny
case a right to appeal. Appeals have always been favored in the law of
this state. Davidge v. Magliola, 346 So. 2d 177 (La.1977).

In exercising his right to appeal, Goodley did not attack his conviction
for manslaughter. He raised only the issue of the excessiveness of his
sentence. Now, as a result of this court’ s patent error reversal of that
conviction, the State is attempting to retry Goodley for first degree
murder. Should the State be allowed to do so, the defendant would be
facing a possible death sentence or life imprisonment as a result of an
appeal through which he sought only to have this court review the

1 Even before the 2019 amendments and the Supreme Court decision in Ramos, Louisiana required
a unanimous verdict for any conviction in a first degree murder case, including for lesser included
offenses, as was the case here.

3

excessiveness of his sentence for manslaughter. Such a result is
unconscionable.

Goodley, 423 So. 2d at 651 (footnote omitted). As noted above, this portion of the
analysis remains in force today.
Defendant in the present case successfully appealed his unconstitutional
nonunanimous conviction for manslaughter, and , as in Goodley , he cannot be
penalized for seeking that appeal by being subjected to a second trial on a charge for
which he has already been acquitted. Defendant would face a m andatory life
sentence if convicted of second degree murder. R.S. 14:30.1. He should not be forced
to choose between letting an unconstitutional conviction stand or risk spending the
rest of his life in prison. Such a “chilling effect” on defendant’s right to appeal would
be impermissible and unconstitutional. Jackson, 390 U.S. at 582; Goodley, 423 So.
2d at 652.